Native Appeal Court records

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YERSLAEVAN DIE

BANTOE-APPELHOWE

1970

REPORTSOF THE

BANTU APPEALCOURTS

Gedruk deur en verkrygbaar by Die Staatsdrukker,Bosmanstraat, Privaatsak X85, Pretoria

Printed by and obtainable from The Government Printer,

Bosman Street, Private Bag X85, Pretoria

G.P.-S.61046— 1970-71—700

61046—6

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AMPTENARE VAN DIE BANTOE-APPELHOWE, 1970OFFICERS OF THE BANTU APPEAL COURTS, 1970

SENTRALE BANTOE-APPELHOFCENTRAL BANTU APPEAL COURT

Voorsitter/President: H. J. POTGIETERPermanente lede/Permanent members:

J. P. THORPE, D. O. BOWEN

NOORD-OOSTELIKE BANTOE-APPfiLHOFNORTH-EASTERN BANTU APPEAL COURT

Voorsitter/President: C. J. CRONJEPermanente lid/Permanent member: R. M. CRAIG

SUIDELIKE BANTOE-APPELHOFSOUTHERN BANTU APPEAL COURT

Voorsitter/President: E. J. H. YATESPermanente lid/Permanent member: A. J. ADENDORFF

61046—7

ii

Bladwyser van Sake

Case Index

1970BladsyPage

B

Boneni: Siyange v 38Bulose v. Gumede 23Buthelezi v. Magwaza 33

Buthelezi v. Zulu 1

CChristian Apostolic Church in Zion of South Africa v.

Madonsela . ... 21

DDalibango: Mlengana v 43Dhlamini vs Dhlamini 48Dhlamini General Dealer v. Mokoroto 73Dhlamini: Ngcobo v 86

GGumede: Bulose i> 23Gwiliza v. Ngcezu 31

HHlabathi v. Nkosi 51

J

Jacisa: Sogoni v 76

MMabaso: Mbatha v 27Madonsela: Christian Apostolic Church in Zion of South

Africa v 21

Mafulela v. Mxezeni 15

Magwaza: Buthelezi v 33

Majola v. Ngubane 36Makhubela: Ngcobo v 64Makinzi v. Mteza 45Mapongwana v Sihewula 80Mbatha v. Mabaso 27Mcinga: Nomadudwana v 11

Mduduma v. Sitwayi 19

Mlengana v. Dalibango 43Mngeni : Noganta and Ano. v 69Mokoroto: DIamini General Dealer v 73

Mpunga v. Mpunga and Mpunga 40Mthetwa v. Ndaba 83

Mteza: Makinzi v 45Mxezeni: Mafulela v 15

Ill

BladsyPage

NNdaba: Mthetwa v 83Ngcawe v. Tentu 66Ngcezu: Gwiliza v 31

Ngcobo v. Makhubela 64Ngcobo v. Dhlamini 86Ngubane: Majola v 36Nkosi: Hlabathi v 51

Noganta and Ano. v. Mngeni 69Nomadudwana v. Mcinga 11

S

Sihewula v. Mapongwana 80Sitwayi: Mduduma v 19

Siyange v. Boneni 38Sogoni v. Jacisa 76

TTentu: Ngcawe v 66

ZZulu: Buthelezi v 1

iv

Inhoudsopgawe

Index of Subject Matter

1970Bladsy.Page

Appeal

Procedure 48

Bantu Law and Custom. Zulu LawChurch body—written constitution—failure to produce con-

stitution—legal entity—Bantu-jurisdiction of BantuAffairs Commissioner’s Court 21

Customary union—illegitimate child bom before marriage

—

damages not paid in full by seducer—woman’s kraal headentitled to rights in child 15

Dowry—liability of dowry eater to return dowry paid for

second customary union where first marriage by civil rites

still existed 76Zulu custom—immediate inheritance by heir—liability for

predecessor’s debts—limited to extent of assets inherited 27

Breach of Promise

Promise of marriage by married man—Injuria 1

Common LawChurch body—written constitution—failure to produce con-

stitution—legal entity—Bantu-jurisdiction of BantuAffairs Commissioner’s Court 21

DamagesSeduction and pregnancy—proof—delay in reporting—

-

previous visits—intercourse prior to conception—admissi-

bility 69

Defamation

“Report back” meeting—consultation of witchdoctor—

•

witchcraft—volenti non fit injuria 33

Privileged occasion—what is—what is not— family matterfor discussion 36

Privileged occasion—public meeting—discussion of matter

of public interest—person in authority—law and order. . 43

Default Judgment

Rescission—rebuttal of inference of negligence on Defen-

dant’s part—unnecessary for Defendant to notify co-defen-

dants of intention to apply for rescission 11

Execution

Risk or loss of cattle attached in excess of judgment anddying under attachment to be borne by judgment creditor 40

Under Zulu tribal law and custom 27

Injuria

Promise of marriage by married man 1

BladsyPage

ISONDHLO

Right of natural father to claim 23

Judgment

Rescission of default judgment—who should apply

—

res

judicata—wilful default 45

Jurisdiction

Trial court—essentials 83

Maintenance

Quantum—discussion of facts in relation thereto 1

Enquiry under Maintenance Act, 1963—absence of Main-tenance Officer from hearing—illegitimate child—meansof mother—representation of parties—functions of

presiding and Maintenance Officers discussed 51

Paternity of child bom during marriage—mother’s evidence

of illegitimacy—maxim pater est quern nuptiae demon-strant—Act 23 of 1963 64

Claim under Act 23 of 1963—essentials—late noting ofappeal—condonation—grounds—just cause 86

Paternity

Onus in issue where intercourse and paternity admitted in

respect of first child but denied in respect of subsequentchild—corroboration requirements 1

Practice and Procedure

Chief’s court—dismissal of claim—fresh summons may beissued in Bantu Affairs Commissioner’s Court 19

Sufficiency of evidence—corroboration of guilty wifeconcerning adultery—award of costs 66

Unnecessary withdraw summons based on same cause ofaction before issuing fresh summons—court’s discretion to

allow second action to proceed—further attempt to

“putuma” constitutes fresh cause of action where plaintiff

is suing for return of wife 80

Review

Refusal to afford applicant an opportunity to be repre-sented—irregularity 38

Application for—procedure 48

Seduction

Written undertaking to pay damages admissible as evidence

—

document in vernacular should be translated into an official

language—damages under common law—considerations 31

WomanPractice—issue of summons for debt against a Bantu woman 73

Zulu Law and CustomIsondhlo—right of natural father to claim 23Zulu tribal law and custom—execution of judgments

—

substitution of heir before execution—immediate inheri-

tance by heir—liability for predecessor’s debts—limited toextent of assets inherited 27

61046—8

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CENTRAL BANTU APPEAL COURT

BUTHELEZI versus ZULU

B.A.C. CASE 22 OF 1969

JOHANNESBURG: 27 November 1969, Before Potgieter,

President, and Thorpe and Bowen, Members.

BREACH OF PROMISE, INJURIA, PATERNITY AND MAINTENANCE

Promise of marriage by married man—injuria

—

onus in issue

where intercourse and paternity admitted in respect of first

child but denied in respect of subsequent child—corroborationrequirements of paternity matters—quantum of maintenanceand facts in relation thereto discussed.

Summary: Plaintiff alleged that Defendant had made an offer

of marriage to her which she had accepted. Defendanthaving informed her that he was not married whereas hewas in fact a married man. She claimed R300 damages for

injuria as well as affiliation orders and maintenance in

respect of two children alleged to have been born as a

result of illicit intercourse between them. Paternity of first

child admitted but denied in respect of second child.

Question of onus. S. vs Swart, 1965 (3), S.A. 54 (A.D.),

discussed.

Held: Damages on contumelia for injuria not proved.

Held, further: That as S. vs Swart, dealt with the paternity

of only one child born after the admitted intercourse, the

ruling therein as to onus does not apply to the present

situation, where intercourse in respect of the birth of a

subsequent child is denied.

Held, further: That it would be inequitable to order Defendantto pay more pro rata for the maintenance of his illegitimate

child than for the maintenance of his legitimate children.

Cases referred to:

Viljoen vs Viljoen, S.A.L.R. (C.P.D.), 1944, 137;

Kannenmeyer vs Gloriosa, 1953 (1), S.A. 580 (W);

Mogoai vs Tshabalala, 1953, N.A.C. 294 (C.D.);

S. vs Swart, 1965 (3), S.A. 454 (A.D.);

Maharaj vs Parandaya, 1939, N.P.D. 241;

Mackay vs Ballot, 1921, T.P.D. 430;

Wiehman vs Simon, 1938, A.D. 447;

R. vs W, 1949 (3), S.A. 772;

S. vs Snyman, 1968 (2), S.A. 582 from 589 (c);

Twigger vs Starweave (JPty) Ltd, 1969 (4), S.A. 369 (N);

Buch vs Buch, 1967 (3), S.A. 83 (T).

Works referred to:

Dutch and German authorities referred to in S. v. Swartexcept Van Hoogendorp.

52107-2

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South African Cases and Statutes on Evidence by May,4th edition, paragraph 94.

Appeal from the Court of the Bantu Affairs Commissioner,Johannesburg.

Cur. ad. vult.

POSTEA: 27 January 1970.

Potgieter, President

:

Plaintiff in the court below (now Respondent) sued theDefendant (now Appellant) for (a) R300 damages for injuriaalleging that he informed Plaintiff that he was not a marriedman and that he promised to marry her by civil rites, repeatingthis promise up to July 1967, whereas he was at all materialtimes a married man and; (b) maintenance at the rate of R8per month for each of the two children born to her as theresult of her association with the Defendant, the children beingDavid, born on 27 October 1967, and Promise, born on 2December 1968. There were no express prayers for affiliation

orders but it appears that the court a quo by consent dealtwith the matter as if there were, and this court will do thesame.

In his plea the Defendant denied the alleged promise ofmarriage; he admitted paternity of the child David, but stated

that he last had intercourse with the Plaintiff early in 1967and denied paternity of the child Promise. As to the claim for

maintenance the Defendant pleaded that R3 per month wasadequate for the support of the child David.

Judgment was entered as follows:

“For Plaintiff, R50 damages for injuria, affiliation order assought for two children, and maintenance at the rate of R6 permonth per child. Plaintiff declared a necessary witness. Costs ofsuit.”

Against the whole of this judgment appeal was noted on the

grounds that

—

“(1) the learned Bantu Affairs Commissioner erred in finding

that Plaintiff had proved that she did not know Defendantwas married as in April 1965, and that she became aware ofthe fact only at about July 1968;

(2) the learned Bantu Affairs Commissioner erred in finding

that an unequivocal promise of marriage had been made bythe Defendant as the evidence does not support such a

finding;


that Plaintiff had proved that she had suffered any damagesas claimed or at all;


that Defendant was the father of the Plaintiff’s child bomon 2 December 1968, as the evidence does not support sucha finding;

(5) the learned Bantu Affairs Commissioner erred in makingan order for maintenance without first investigating the finan-

cial obligations of both parties to the action;

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(6) the learned Bantu Affairs Commissioner erred in findingthat the Defendant was able to pay an amount of R6 permonth per child considering that he has a wife who is

unemployed and five children to support from a salary ofabout R12 per week;

(7) the learned Bantu Affairs Commissioner should haveaccepted as more probable the version testified to by theDefendant and corroborated by his wife and the Plaintiff

herself in some respects.”

I intend to deal only with Claim A as my brother Thorpehas dealt with B and I concur with his findings.

The Plaintiff’s claim for damages is based upon

—

(a) the Defendant’s alleged promise to marry her, and

(b) the injuria and/or contumelia she suffered through theaction of Defendant by not telling her, at the time he madethe promises to her, that he was a married man and therebyinducing her to allow him to have intercourse with her andrender her pregnant twice.

Defendant denied that he had promised to marry Plaintiff, butstated that she knew all along that he was a married man andcould not marry her. He admitted that he had rendered Plaintiff

pregnant, but added that he only did so once and not twice as

alleged by Plaintiff, and that he was prepared to pay maintenancein the amount of R3 for the child David born on 27 October1967, and of which he admitted he was the father.

It is trite law, as was stated in Viljoen vs Viljoen, S.A.L.R.C.P.D. 1944 (at page 137), per Sutton J. as follows:

“As a married man cannot make a valid promise to marry the

nature of the action which a woman has for breach of suchpromise when she is unaware that at the time of the making ofthe promise that the man is married is based upon the injuria

suffered by her” . . . “In the view I take of the law, I can onlygive damages for the injuria suffered by the Plaintiff for contu-melia, for the insult that this man, not only proposed to this

woman, and was accepted by her, but made love to her, and soon”.

Two essential requirements must therefore first be satisfied andproved by the Plaintiff in the present case before she can succeedin her action for damages

—

(i) that a promise to marry was made by the Defendant;that he war married at the time he made it and that the Plain-

tiff, at the time, was unaware that he was a married man; and

(ii) that as a result hereof she is entitled to be compensatedfor the injuria suffered by her for cantumelia.

The Plaintiff in her claim stated that Defendant promised to

marry her and that promise was repeated from time to time, the

last time being July 1967. Nowhere in the evidence led could I

trace any corroboration of when, where and in whose presencesuch promises were made, except in Plaintiff’s own evidence whostated that such promises were made twice; once in her evidencein chief where she said “In February, 1965, Defendant proposed

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love to me, saying that he wanted to marry me: I agreed to amarriage by civil rites”. And again in cross-examination whereshe said “I say Defendant promised me marriage”. Daniel,Plaintifff’s only other witness, did not mention that Defendanthad informed him that he wanted to get permission to marry his

sister because he had promised to marry her. His version reads:“I first met him when he approached me for my consent to

marry my sister on 30 March 1967, if I am not mistaken”. Heonly testifies to a request made to him for consent to marry notof having been present when a promise to marry her was madeby Defendant

:

(1) Great reliance was placed on the letter (Exhibit “A”), onwhich the Defendant admitted he was the author except for threewords at the end, which in translation read “until we get marriedThandi”, the authorship of which he denied, to support the alle-

gation that a promise to marry was made by the Defendant.

I have perused the letter carefully and to my mind this letter

is nothing more and nothing less than a statement of fact onbehaviour. It opens with “my Mrs the Zulu” and then continuesin the most endearing terms. In one place he wrote : “Rememberthat a promise can never be broken without a reason; becauseyou promised to die for me and I promise you”. It would appearthat they reciprocally promised to die for each otherand did not make a promise to marry; and again further on“Mummy forgive me for all I have done ... I am yours”. To methis letter conveys an expression of Defendant’s feelings towardsPlaintiff's only, and not that it contains a promise of some futureevent still to take place. The whole tenor of the letter is clothedin terms a husband would normally employ in writing to his wifeor to a woman he considers to be his wife, and here I am in full

agreement with the Commissioner's conclusion in his reasons,

where he said “Defendant’s actions in arranging for Plaintiff’s

confinement, and bringing her back to his house afterwards tendto indicate that he treated her as his wife”.

To strengthen her argument and allegation that there was a

promise to marry, the Plaintiff and her brother Daniel Zulu gaveevidence of lobolo negotiations that were supposed to have takenplace between the parties, and that her brother was only agree-

able that a civil marriage could take place after lobolo had beenpaid for his sister.

(2) From the evidence that was laid before the court a quoin this case it would seem that practically all customaryformalities and usages, which ordinarily are observed duringnegotiations of this nature were simply thrown overboard, andthat the Defendant in defiance of Bantu custom and tradition

—

just went up to Plaintiff’s brother and paid R25 on the loboloaccount. Tradition is so deeply entrenched in the Bantu way oflife, that it is almost unthinkable that such a gross disregard

thereof could have taken place. Consequently due to the scanti-

ness of the evidence produced, a doubt has arisen in my mindwhether the amount of R25 paid to Plaintiff’s brother Daniel wasin fact paid as a part payment of lobolo or as damages as alleged

by Defendant, who emphatically denied that there ever were anylobolo discussions between the parties, seeing that he was already

a married man at the time they took place.

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Having considered the question of the promise to marry care-fully and due to the paucity of corroborative independentevidence and particularly in view of the apparent conflict in theevidence given by Plaintiff on the one side and Daniel Zulu onthe other in regard to the payment of the R25 as part paymentof lobolo where she (Plaintiff) stated that she was standing in

the doorway and saw Defendant's representative pay the moneyover to Daniel but was unable to say whether it was the full

amount and he, Daniel, that the first time he saw Defendant waswhen he (Defendant) came to him to pay the R25 and then madeno mention of a representative, and whereas there is also noproven evidence, except the separate uncorroborated evidence, byboth Plaintiff and Daniel, that Defendant ever visited Daniel to

ask for Plaintiff’s hand in marriage, and whilst Plaintiff said it

was in February 1967, and that at that time she was not yet

pregnant, and was being contradicted by her brother Daniel, whosaid that it was approximately the 30 March 1967, and his sister

was then already pregnant, and whereas Defendant strenuouslydenied that any negotiations for the payment of lobolo ever tookplace, as Plaintiff knew that he was already a married man andthat the R25 was paid as damages for having rendered Plaintiff

pregnant with the child David, any conclusive inference as to

the precise nature of the negotiations, at this stage, appears to be,

out of place.

(3) To arrive, therefore, at a definite conclusion, either way,in this particular dispute between the parties, I consider would beinappropriate and I feel that the Commissioner must have foundhimself in the same predicament when he stated in his reasons for

judgment, “The Court having decided that Defendant had madea promise of marriage, it follows that Plaintiff has suffered

injuria”, without giving more detailed grounds for his decision.

As the probabilities of the whole issue at this stage still seem to

be in a fluid stage, it becomes necessary to see what otherevidence is available to the court.

The Commissioner accepted as a fact proved that Defendantapproached Daniel Zulu in February 1967, representing himself

as a single man. The Commissioner misdirected himself when hecame to this conclusion. There is no evidence on record in this

regard to support his view, as shown above. His conclusions in

this regard could only have been based on uncorroborated circum-stantial evidence given by Plaintiff and Daniel Zulu, but denied

by Defendant.

The Commissioner seems to have accepted the evidence that a

fight did take place in 1966, between the Plaintiff and Defendant’s

wife, but to have rejected the possibility that Plaintiff knew the

other woman was Defendant’s wife and consequently came to the

conclusion that Plaintiff has suffered an injuria in that Defendanthad made a promise to marry her whilst he was already a marriedman, that fact being unknown to her. Having closely examinedthe available evidence pertaining to this aspect of her claim

I was unable to arrive at the same conclusion as the Com-missioner and am of the opinion that Plaintiff must havebecome aware either at the time of the fight that the other womanwas Defendant’s wife, and he therefore a married man, or at the

time when she came to live with him in his house. According to

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evidence produced, and not refuted, Defendant’s wife was allegedto have been in the house also at that time, particularly during theperiod from July 1967 to September 1967, when Defendant’s wifestated she was kicked out and said she left her children behind.

Plaintiff’s replies in cross-examination that she neither sawDefendant’s wife nor his children in the house during her stay

there are not very convincing and must militate against her.

Finally the onus was upon the Plaintiff to convince the courtthat she had suffered damages as the result of an injuria, the con-tumelia inflicted upon her good name and reputation and there-

fore entitled to be adequately compensated. The following wasthe evidence placed before the court and upon which it had to rely

for a decision

:

That—(i) Plaintiff had a child by one Opperman in 1962 who

deflowered her, promised to marry her, but failed to do so;

(ii) in 1965 she fell in love with Defendant, who, accordingto her, promised to marry her, repeating the promise in

1967, rendered her pregnant, but also failed to fulfil his promiseto her;

(iii) after the birth of her child by Defendant, according to

her own admissions, and that of her brother Daniel Zulu,Defendant was in the habit of calling her to come and stay withhim and she did so on several occasions up to a week at a time;

(iv) Defendant denied that he had had intercourse with hersubsequent to the birth of David on 27 October 1967;

(v) she, however, continued to live in his house until Januaryor February 1968, when she returned to her brother’s house;

(vi) she again became pregnant and a third child was bornto her on 2 December 1968. Although she claimed that Defend-ant was also the father of this child, this she failed to prove, as

shown in the judgment of my brother, Thorpe. It would, there-

fore, seem to appear that the Plaintiff was rather freely bestow-ing her favours upon men, who, whilst promising to marry her,

never did so. The Commissioner also felt “that her dignity andchances of marriage had not been impaired to the extent sheclaimed.”

After due consideration of all the evidence placed on record bythe Plaintiff I am satisfied that Plaintiff has failed to establish herclaim for any damages for injuria suffered by her, on the weightof the probabilities of the evidence produced, and Defendant is

found to be entitled to receive judgment in his favour on this

claim.

Although the Defendant has been successful both in this courtand in the court a quo, his behaviour leaves much to be desired

and he should pay his own costs in both courts.

It is ordered that the appeal be, and it is hereby, upheld andthe judgment of the Bantu Affairs Commissioner is altered to

read

:

Claim (a) damages for injuria—judgment for Defendant.

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Claim (b) (1) Affiliation order in respect of the child David(male) born on 27 October 1967—confirmed.

(2) Affiliation order in respect of the child Promise (female)born on 2 Desember 1968—absolution from the instance.

(3) Maintenance order in favour of the child David—confirmed,but the amount is reduced to R3 per month. There shall be noorder to costs either in this Court or in the Court below.

Bowen, Permanent Member:I concur in the Order made by the learned President.

Thorpe, Permanent Member:

I concur with the order made by the learned President at theconclusion of his judgment. As far as the claim for damages is

concerned, I agree that it is by no means clear that the allegedpromise was made, but if it was it does not necessarily follow,

as the Commissioner seems to have thought, that damages must beawarded if it is not fulfilled. Kannenmeyer vs Glorosa 1953 (1)

S.A. 580 (W) and Mogoai vs Tshabalala 1953 N.A.C. 294 (C.D.).It is possible that the Plaintiff did not discover that the Defendantwas a married man until after she had ceased to consort with him,but even if this is so, on the Plaintiff’s own evidence she is notentitled to damages for injured feelings which she is claiming.In addition to what the learned President has said I would pointout that the Plaintiff did not testify that her feelings had beeninjured and she did not explain why she waited for about half ayear before suing for damages, According to the Plaintiff, thepromise was made in February 1965, but for three years she nevertried to get a date for the civil marriage fixed and was preparedto live with the Defendant indefinitely without being married to

him by civil rites. By her conduct the Plaintiff must be taken to

have forfeited any right she may have had to claim damages.At the President’s request I will now deal with the appeal con-cerning the affiliation and maintenance orders made in respect

of the child Promise, and that concerning the quantum ofmaintenance awarded in respect of the child David.

On the paternity issue, the incidence of the onus of proof mustbe established where, as in this case, the Defendant admittedintercourse prior to the birth of the one child, David, but deniedhaving had intercourse thereafter and consequently deniedpaternity of the subsequent child. Promise. The Commissionerindicated in his reasons for judgment that he considered that the

onus in such circumstances was on the Defendant to show that

he could not be the father of the last child. Reliance was placed

on S. vs Swart 1965 (3) S.A. 454 (A.D.) where it was held that

were a woman claims maintenance for her illegitimate child, anadmission of intercourse, no matter when it occured, by the manindicated by the mother, creates a presumption that that man is the

father and it places an onus on him to prove that he cannot be the

father. However, that case dealt with the paternity of only onechild, namely, the child born after the admitted intercourse, andthe ruling therein as to onus does not seem to have any applica-

tion to the situation now before us. None of the South African

decisions or articles referred to in that case dealt with the question

of onus in regard to the issue of the paternity of a child born as

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the result of a pregnancy subsequent to that during which orbefore which the last admitted intercourse had taken place. I havealso consulted all the Dutch and German authorities referred to

in Swart’s case, except Van Hoogendorp, whose works apparentlyare not in the library of the Witwatersrand Local Division; in

regard to Carpzovius, I could not find the 1772 edition of thework referred to and consulted that of 1752, in which section

61.67 seemed relevant; all these authorities also appear to dealonly with the first birth following on the admitted intercourse.

As the Defendant had not admitted any intercourse after the birth

of the child David, I am of the opinion that there was no onus onthe Defendant and that the onus was consequently on the Plain-

tiff to prove on the probabilities that the Defendant is the fatherof the child Promise.

Where the onus is on the Plaintiff in paternity or seductionsuits there must also be corroboration, which is defined as followsin Maharaj vs Parandaya 1939 N.P.D. 241, per Feetham, J.P., ashe then was:

“Corroboration is required not only as to the fact of intercoursehaving taken place but also as to the identity of the person who is

alleged to have had intercourse with the Plaintiff and that cor-

roboration means some evidence, other than that of the Plaintiff,

which is in some degree consistent with her story and inconsistentwith the evidence of the Defendant”.

In the Maharaj case the issue was paternity and the definition

of corroboration given therein was taken from Mackay vs Ballot,

1921 T.P.D. 430 and was regarded by Feetham, J.P., as havingbeen confirmed in Wiehman vs Simon, 1938 A.D. 447. That the

required corroboration may be afforded by occurrences after the

intercourse in question is clear from the Maharaj case and otherdecisions of the Supreme Court.

In passing, note could be taken of the anomaly that, whereascorroboration is required in civil causes concerning seduction orpaternity, none is necessary for a conviction on a criminal chargeof sexual assualt. See May’s “South African Cases and Statutes onEvidence”, 4th edition, paragraph 94. The Appellate Division hassince Wiehman’s case indicated that it doubts whether corrobora-tion in such civil cases is essential. R. vs W. 1949 (3) S.A. 772, at

779, and S. vs Snyman 1968 (2) S.A. 582, from 589C. However,Mackay’s case has not as yet been overruled, either expressly or

by implication, and must be followed, where, as here, the Defend-ant denies having had intercourse since a previous pregnancy.

As the Court a quo misdirected itself on the incidence of the

onus of proof, this Court is at large to embark on a reconsider-

ation of the evidence on the issue of paternity of the child

Promise: Twigger vs Starweave (Pty) Ltd, 1969 (4) S.A. 369 (N).

In paternity cases a Plaintiff should give evidence as fully as

possible. It would be helpful if she could testify as to for example:

(1) The date of birth;

(2) the place(s) and approximate date(s) of the act or acts of

intercourse which could have caused the pregnancy;

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(3) when she first noticed she was pregnant;

(4) what steps were taken to notify the Defendant and especi-

ally, if he denied paternity, what further action, if any, was takenprior to the issue of summons; and

(5) whether the child was full term, premature or overdue.

The Plaintiff gave no evidence on any of these points. She didnot testify as to the fact of the birth or the date thereof, thoughperhaps it was not necessary for her to do so. as the Defendant,when he pleaded a denial to being the father of Promise, said

nothing about the existence of the child or its date of birth, andconsequently it is not disputed that Promise was born on 2December 1968. However, there is nothing to link the Defendantwith that pregnancy. The Plaintiff does not show that she and the

Defendant were in the same vicinity when the relevant intercoursetook place. She said no more than that after the birth of Davidon 27 October 1967, she continued to consort with the Defendentand became pregnant again. She did not say how long the preg-

nancy lasted, so the date of conception cannot be calculated fromthe date of birth. If it was for normal period of between thirty-

eight and forty weeks, then she should have conceived betweenthe 26th February, and the 12 March 1968. But, once again, wherewas she when the relevant intercourse took place? The Plaintiff’s

evidence is that the Defendant sent her back to her brother in

February, but she does not mention the date. On the other hand,the Defendant's wife says that she came back to the Defendant’shouse in January and that the Plaintiff was no longer there then;

also, the Plaintiff’s brother says that he cannot deny that the

Plaintiff was brought to him during the second week of January.Furthermore, it must have been on the Plaintiff’s instructions that

her attorney put it to the Defendant that the Plaintiff was in

domestic employment in Yeoville from February (meaning pre-

sumably the beginning of February), to October 1968. In these

circumstances it is not improbable that the Defendant’s evidenceon this point is true, namely, that he sent her to her brother in

January, long before the date on which she would, in the normalcourse, have conceived. It is to be noted that the Plaintiff dit not

say that she had become pregnant before she returned to her

brother. The next occasion on which the Plaintiff and Defendantmet, according to the Plaintiff’s evidence, was on the 10th March.The Plaintiff did not testify that intercourse with the Defendanttook place on the 10th March or, for that matter, on any date after

she had been taken back to her brother.

As the Plaintiff has not shown on the probabilities that the

Defendant is the father of the child Promise and as there is a

complete lack of evidence inconsistent with the Defendant’s in-

nocence, the judgment on the claim for an affiliation order should

be one of absolution. The ancillary claim for maintenance for this

child consequently should not succeed.

In regard to the last issue, namely, that of maintenance, it

is clear that the Defendant should contribute towards the main-

tenance of the child David, only. The dispute concerns the

quantum. As indicated by the Commissioner, he was not dealing

with an enquiry under the Maintenance Act, No. 23 of 1963. in

which he would have been obliged to ensure that a full investi-

gation was made, as indicated in Buch vs Buch 1967 (3) S.A. 83

10

(T), concerning the needs of the child and the ability to pay ofthose persons legally liable to maintain it. The Commissionerwas entitled to make an order on the evidence as presented.

However, the Commissioner does not appear to have taken into

consideration the fact that the Defendant has to support his wife,

who is apparently not in receipt of any income, as well as five

minor children by her, some of them presumably much older thanDavid. It would be inequitable to order the Defendant to paymore pro rata for the maintenance of David, his child by the

Plaintiff, than for maintenance of each of his children by his

wife, especially as (a) the Plaintiff is earning R20 per monthand (b) David is still small. The Defendant earns R12 per week,which on the average comes to about R52 per month, and it

would seem that he cannot afford more for the child David thanhe offered, namely R3 per month, I would alter the maintenanceorder accordingly.

For Appellant : Mr J. N. Madikizela, Johannesburg.

For Respondent: Mr Henry Helman, Johannesburg.

11

SOUTHERN BANTU APPEAL COURTB.A.C. CASE 32/69

NOMATI NOMADUDWANA vs NTUMBATYA MCINGA

UMTATA: 3 February 1970. Before Yates, President, andMessrs Adendorff and Hooper, Members

DEFAULT JUDGMENT-APPLICATIONFOR RESCISSION

Summary: An application was made by Defendant 4 to rescind a

default judgement given against him and three others. Heaverred in his affidavit which accompanied his application that

he had a good defence, that he had not been wilfully anddeliberately in default and that he had instructed an attorney

to appear on his behalf.

Held: That an enquiry directed to his attorney from time to

time was sufficient to rebut an inference of negligence onDefendant’s part.

Held further: That the presiding officer should record at eachhearing whether parties present or not.

Held further: That it was not necessary for Defendant to notify

the co-defendants of his application to rescind the default

judgment against him.

Appeal from the Court of the Bantu Affairs Commissioner,Elliotdale.

Yates (President) delivering the judgment of the Court

:

Plaintiff (now Respondent) sued the four Defendants for R1 000damages and costs which he alleged he had suffered as a result

of an assault upon him. The summons was served on 6 May 1968,

appearance to defend was entered on 9th idem and on 13 Junea plea was filed on behalf of all the Defendants denying the

assault. The case was set down for trial on 26 July and the entry

on the record for that day reads as follows

:

“Mr Rose, for Plaintiff.

Mr Ntswayi, for Defendants.

Mr Ntswayi informs Court that some of Defendants are awayat work.

Mr Rose says he is prepared to give one postponement for

three months.

Postponed to 1 November 1968. Defendants to pay wastedcosts.”

On 1 November 1968 the entry is:

“Appearances as before.

By consent postponed to 24 January 1969.”

12

On 24 January 1969 the entry is-

“Appearance as before.

By consent postponed to 21 February 1969.’’

On 21 February 1969 Mr Rose appeared for Plaintiff and MrNtswayi who appeared for Defendants withdrew as his clients

were not present. Formal evidence was then led and a defaultjudgment entered “for Plaintiff by default as prayed with costs”.

The entry on the face of the record, which was also signed by thepresiding officer, however, reads “Default judgment R500, as

prayed with costs against Defendants jointly and serverally.” It is

thus not clear whether judgment was given for R500 or R1 000.

On 28 July 1969, an application was lodged on behalf ofDefendant 4 for an extension of time within which to apply forrescission of the judgment given against him on 21 February 1969and if granted for rescission of the judgment.

On 25 August the application for rescission was refusedwith costs and an appeal has now been lodged against this

decision on the grounds

—

“(a) that the judgment is against the weight of evidence andprobabilities of the case;

(b) that the Judicial Officer erred in holding that Applicant,Nomati Nomadudwana, was negligent to the point of being in

willful default in spite of Applicant's diligence in engaging the

services of an attorney of the court and placing his defence onthe attorney in whom Applicant had faith and who purportedat all times to watch Applicant's interests.”

In the affidavit which accompanied the application for rescis-

sion of the judgment, Defendant 4 averred that he had a goodand bona fide defence in that he was not a party to the assault

on Plaintiff and was not cited in the criminal proceedings whichresulted in the other three Defendants paying admissions of guilt.

He averred further that on receipt of the summons he immediatelyinstructed Mr Attorney Ntswayi to appear for him and thereafter

enquired from time to time in regard to developments but wasassured that he would be notified of the day of hearing in goodtime. However, he heard nothing further until 10 head of his cattle

were attached in March 1969, in pursuance of a default judgmentobtained against him on 21 February 1969. He reported the

attachment to his attorney immediately and that he did so is con-firmed by the fact that he signed an affidavit in regard hereto on17 April and an application for rescission of the judgment waslodged with the Clerk of the Court on 21 April. The fact that

the application was returned to his attorney on 25th idem becausethe costs previously incurred had not been paid was not Defen-dant’s fault.

An interpleader action followed but the details thereof are notclearly explained in the affidavit. Obviously, however, Defendantwas still fighting the matter.

According to his affidavit he learned on 28 July 1969, that his

attorney had taken ill and been removed to East London before

the application for rescission was returned to his attorney’s office

in April.

13

No replying affidavit was filed nor was any attempt made to

refute the statements contained in Defendant’s affidavit. It is clear

from the contents thereof that Defendant intended all along to

defend the action. He apparently took no interest in the matter

from June 1968 when his plea was filed until the attachment of

his cattle in March 1969 but his affidavit indicates that he hadapproached his attorney from time to time and relied on the

latter’s assurance that everything was in order. His attorney maywell have been negligent but his apparent neglect of his client’s

interests may have been due to illness and to the fact that in the

absence of the other defendants at work he expected a postpone-

ment to be granted and thus omitted to notify Defendant 4 of the

dates of hearing. In somewhat similar circumstances an appli-

cant’s inaction was not regarded as negligence sufficient to debarhim from the relief sought. See Mtshotana v. Ngonyama 1962

B.A.C. 78 (S). The Commissioner in his “reasons for judgment’’

stated that the inaction of the Defendant over a lengthy period

in this case cannot be considered in the same light as in Mtsho-tana’s case but his reason for saying so is not apparent.

The Commissioner also held that Defendant was present in

court on 24 January 1969, i.e. the date of hearing preceding the

date on which the judgment was given, and if this was so then

indeed he was at fault. The record, as indicated above, however,makes no mention of whether the parties were present personally

or not. The Commissioner has drawn the inference that becausenothing appeared on the record the parties must have beenpresent on that date but there has been no suggestion that

Defendants 1, 2 and 3 were present and in my view the obviousinference is that if Defendant 4 had been present the presiding

officer would have recorded that fact.

As stated in the case of Gxaleka v. Mabamle 1945 N.A.C.(C. & O.) 67, there are three matters to be taken into accountwhen considering an application for rescission of a judgment. Thefirst is whether there has been wilful or deliberate default andmanifestly in the instant case Defendant has all along intendedto defend the action and not let it go by default. The nextquestion for consideration is whether the non-appearance has beenreasonably occasioned and in my view the Defendant has sub-mitted a satisfactory explanation of his failure to attend. Thirdlyif the default was not wilful but was reasonably occasioned thenthe Court should consider whether there is a good defence to theclaim and it is clear that if Defendant can prove that he was nota party to the assault he cannot be mulcted in damages.

Mr Mpotulo also raised the point that the requirements of sub-rule 59 (1) of the Rules for Bantu Affairs Commissioner’s courtscontained in Government Notice 2083 of 1967 had not been com-plied with in that the Defendants who would be allccted by anyorder made by the court were not notified of the intention toapply for the rescission of the judgment.

Mr Muggleston argued that as the other three Defendants hadallowed the matter to go by default they had no further interest in

the case and that therefore there was no necessity to give themnotice. He also pointed out that in the case of Semane v. Semane,1962 B.A.C. 61 (S) referred to by the Commissioner the Applicantwho intervened was a third person and not a party to the original

14

case. The default judgment was against all four Defendants“jointly and severally” (although this prayer was not containedin the summons) and each was therefore liable for the full amountof the judgment so that if one succeeded in having the judgmentagainst him altered it would not affect the liabillity of the otherthree who would each remain liable for the full amount. At this

stage of the proceedings, i.e. the “rescission of judgment” stage,

the other Defendants were not affected although it may well bethat when the matter comes to trial and a decision has to be madewhether or not Defendant 4 is or is not liable then the otherdefendants might be affected to the extent that being joint andseveral defendants their right of recourse for a refund of a share

of any damage paid by them might be reduced to actions against

two instead of three other Defendants.

In the result the appeal is allowed with costs. The judgment of

the Court a quo is altered to read “The application by Defendant4 for the rescission of the default judgment against him is grantedwith costs.”

For Appellant: Mr K. Muggleston.

For Respondent: Mr S. M. Mpotulo.

15

SOUTHERN BANTU APPEAL COURT

B.A.C. CASE 38/1969

ZANEKE MAFULELA vs SISIPENI MXEZENI

UMTATA: 4 February 1970, before Yates, President, and MessrsAdendorff and Botha, Members

Customary union—illegitimate child born before marriage—damages not paid in full by seducer—Woman’s kraalheadentitled to rights in child

Summary: The dowry-eater and the husband of a woman eachclaimed the property rights in her illegitimate child bornbefore her marriage and for whom damages had not beenpaid in full by the seducer.

Held: That the dowry-eater is entitled to the lobolo of theillegitimate child.

Appeal from the court of the Bantu Affairs Commissioner,Lusikisiki.

Yates (President) delivering the judgment of the Court:

Good cause having been shown the late noting of the appealwas condoned.

This case emanated from the Court of the Amakwalo TribalAuthority. The pleadings in that Court, as recorded, are some-what difficult to follow but Plaintiff (now Appellant) apparentlysued Defendant (now Respondent) for a declaration of rights in

respect of a certain woman Nozogweba and judgment was given

in his favour. On appeal to the Court of the Bantu AffairsCommissioner the claim was amplified as follows

:

“1. The parties to this claim are Bantu in terms of Act 38

of 1927, as amended from time to time.

2. Plaintiff sues in his capacity as eldest son of MafulelaMtintanyoni and as agent and manager of the affairs of the

kraal of the said Mafulela Mtintanyoni who is old, sickly andsenile and unable to manage his affairs.

3. The said Mafulela Mtintanyoni has duly authorised the

Plaintiff to act on his behalf.

4. Plaintiff’s father Mafulela Mtintanyoni is dowry-eater

according to Bantu Law and Custom of certain female Zagweba

@ Tobani.

5. The said Zagweba @ Tobani is the illegitimate daughter

of Plaintiff’s aunt Mgukuzo by Dodela Mhletywa in respect of

whom three head of cattle were paid by the said DodelaMhlatywa leaving a balance of two head of cattle still due andpayable to the said Mafulela Mtintanyoni.

6. The said Zagweba @ Tobani grew up at the kraal of

Mafulela Mtintanyoni and has now been given in marriage.

16

7. Defendant wrongfully and unlawfully claims to be thedowry-eater of the said Zagweba @ Tobani.

8. Plaintiff therefore claims a declaration of rights in respectof the dowry custody of the said Zagweba @ Tobani.”

Defendant’s attorney in his verbal plea, stated that Defendanthad no knowledge of paragraphs 2 and 3 above, denied para-graphs 4, 5 and 6 and asked for a declaration of rights in hisfavour. The appeal was allowed with costs and the judgmentof the Chief’s Court altered to read “For Defendant with costs.”

Piaintifi has now appealed against this judgment in the groundsthat

—

"(1) the learned Bantu Affairs Commissioner erred in givingjudgment for the respondent in that

—

(a) it was proved that the paternity of the child Nozagwebawas by Dodela Mhletywa;

(b) there was agreement between Appellant's family and said

Dodela Mhletywa concerning payment of customary damagesof which three head of cattle were paid leaving balance oftwo head due and payable;

(c) custody of the child Nozagweba was in Appellant’s familyand said Dodela Mhletywa by agreement at all relevant times;

(d) Respondent has not disputed the evidence as to paternity

of the child Nozagweba and as to her custody;

(2) the learned Bantu Affairs Commissioner erred in notfinding that Respondent’s claim has not been proved;

(3) the learned Bantu Affairs Commissioner erred in notfinding the appellant is the rightful person to sue in view ofacceptance of fact by the Chiefs Court and the explanationgiven that appellant is authorised to manage the affairs ofhis father's kraal during his father's illness.”

At the close of Plaintiff’s case Defendant’s attorney submittedthat Plaintiff was the wrong person to sue and also drew the

Court’s attention to the case of Tsotsa vs Mbulali, 4 N.A.C. 45

(1918) Flagstaff and asked that the appeal be allowed with costs.

In his reasons for judgment the Commissioner indicated that

he had not gone into the merits of the first submission but that

on the facts as disclosed by Plaintiff’s evidence he (Plaintiff)

could not succeed.

The facts are shortly that Plaintiff’s sister Mkukuse was seducedand rendered pregnant by one Dodela Mhletywa. Customarydamages were claimed and Dodela paid three head of cattle

leaving a balance of two head owing. After the birth of the

child, Nozagweba, Mkukuse married Defendant by Bantu customand lobolo was paid to her father. The Plaintiff on behalf of his

father; and her husband, the Defendant, each now claim that

they are entitled to the property rights in the girl Nozagweba.

17

The Commissioner based his judgment on Tsotsa’s case (supra)where the assessors stated that “If a man renders a womanpregnant and pays the full fine before she marries, the childborn of the pregnancy belongs to him, but if he pays no fine

or only portion of the full fine before the woman marries hecannot claim the child which becomes the property of the manthe woman marries.” He also referred to the case of Tshali vs

Gcogqo 1947 N.A.C. (C. & O.) 83, in which, he stated, the pointof law was confirmed. The Commissioner, however, has over-looked the fact that in the cases referred to by him the customaryunion was entered into before the birth of the child whereas in

the instant case the child was already born when they married.In Tsotsa’s case the woman was three months pregnant by anotherman before her marriage to Plaintiff and it was in those circum-stances that the assessors gave their opinion. It is trite law that

amongst the Cape Nguni tribes the children of a spinster belongto the father of the woman or his heir; and also that should thenatural father pay the customary fine the ownership in the child

immediately vests in him. See “Native Law in S.A.” (2nd Ed.) bySeymour at p. 152; and “South African Native Law” by Whitfield(2nd Ed.) at page 67, and the authorities cited therein; andWarner’s Digest of S.A. Native Civil Case Law at paragraphs722, 723, 734, 736, 737 and 740. The question was referred to

assessors from Eastern and Western Pondoland who unanimouslystated that this was also the custom applicable in Pondoland.

In the instant case, therefore, as the fine was not paid in full

the ownership in the child vested in Plaintiff and subsequentpayment of a full dowry after the birth of the child for the

mother of the child by another man does not entitle the latter to

the property rights in the child.

The ownership of the child will only vest in the woman’shusband where (a) the woman’s guardian did not receive a fine

from the seducer and the bridegroom did not know of the

pregnancy when the matter is regarded as adultery, or (b) if the

pregnancy is discovered before the consummation of the unionand the suitor decides not to break off the engagement but to

marry the woman. The child born after the union is consummatedthen belongs to him, provided the seducer has not paid the fine

to the woman’s guardian. If the child was born before the con-

summation of the union the husband has no claim to it. (Vide

Seymour at p. 153.)

In the circumstances as disclosed at the end of Plaintiff’s case

he was therefore entitled to judgment. Defendant, however, did

not close his case and is entitled to lead evidence if he so desires.

The appeal is allowed with costs.

The judgment of the Bantu Affairs Commissioner is set aside

and the case is returned for hearing to a conclusion.

For Appellant: Mr T. N. Makiwane.

For Respondent: Mr J. J. Swartz.

52107-3

18

OPINION OF ASSESSORS

Headman Nongonwana Jiyajiya, Libode, Silowana Mtshazi,Port St Johns, Msila Edward Pinyana, Tabankulu, Daniel Tomand Daniel Matha, Lusikisiki.

The question put to the assessors was

—

if a woman gives birth to an illegitimate child for whomno fine or only portion of a fine is paid by the seducer andshe subsequently marries another man, has the latter anyproperty rights in the child?

The answer was

—

the child belongs to the mother’s home. The lobolo of the

illegitimate child belongs to the mother’s home. The subsequenthusband has no claim at all.

The decision was unanimous.

19

SOUTHERN BANTU APPEAL COURTB.A.C. CASE 45/1969

MLILWANA MDUDUMA vs SIMENUKANA SITWAYI

UMTATA.—4 February 1970. Before Yates, President, andMessrs Adendorff and Botha, Members.

Procedure—not necessary to appeal against a Judgment of aChief’s Court dismissing a claim—plaintiff may issue a freshsummons in a Bantu Affairs Commissioner’s Court.

Summary: Plaintiff sued defendant in a Chief’s Court for

return of five head of cattle. Before trial he issued asummons in the Bantu Affairs Commissioner’s Court. Hedid not appear in the Chief’s Court and his claim wasdismissed.

Held: That the dismissal of the claim was equivalent to anabsolution judgment and was not a final judgment. It wastherefore not necessary to note an appeal and Plaintiff

was entitled to issue a fresh summons in the Bantu Affairs

Commissioner’s Court.

Held further: Issue of summons in a Bantu Affairs Commis-sioner’s Court while a case is pending in a Chief's Court is

to be deprecated.

Appeal from the Court of the Bantu Affairs Commissioner.Lusikisiki.


:

Plaintiff (now Appellant) issued a summons against the

Defendant (now Respondent) for the return of five head of cattle

which he alleged had been spoliated from him and for damagesin the amount of R35.

Defendant pleaded that the cattle were legally attached by writ

issued by the Qaukeni (i.e. Chief’s) Court. He also entered aspecial plea at a later date which reads:

“Defendant avers that the Plaintiff instituted a claim in the

Qaukeni Tribal Court in Case 51 of 1966 in respect of the samecattle in issue. In the said case the Plaintiff claimed ownership ofthe said cattle. The Plaintiff was in default at the hearingon 22 June 1966, and the Plaintiff’s claim was dismissed. Theeffect of the said judgment was to declare the cattle executable.

The Plaintiff has not applied for a rescission of the said judgmentnor has he appealed against the said judgment. Defendantaccordingly avers that Plaintiff is debarred from instituting the

instant action.”

The Bantu Affairs Commissioner upheld the special plea anddismissed the claim with costs. An appeal has been broughtagainst this judgment on the grounds:

“1. The said judgment is against the weight of evidence andthe evidence.

20

2. The learned Bantu Affairs Commissioner erred in ruling thatthe appellant cannot proceed in the Bantu Affairs Commissioner'sCourt in the present case in view of the evidence before theCourt.

3. Alternatively appellant asks for review of the whole ofthe judgment of the learned Bantu Affairs Commissioner hereinon the ground of irregularity thereof in view of the said evidence.”

The appeal must succeed on Ground 2 above.

The Clerk of the Bantu Affairs Commissioner’s Court testified

that he had registered Case T122/66 being an interpleader actionin the Chief’s Court in which present Plaintiff sued presentDefendant for delivery of certain five cattle or their value R250which he alleged were wrongly attached. The record contained anote that Plaintiff was in wilful default and on 22 June 1966 his

claim was dismissed with costs. As pointed out by the Commis-sioner Plaintiff must have instituted the action in the Chief’sCourt prior to 22 June. He also issued summons in the instant

case in the Bantu Affairs Commissioner’s Court on 7 June, whichwas served on Defendant on the 15th and a plea was filled on17th idem, i.e. before judgment was given in the Chief’s Court sothat defendant was aware at that time of the pending action in

the Bantu Affairs Commissioner’s Court. As pointed out in the

case of Mdumane vs Mtshakule, 1948 N.A.C. 28 (C. & O.),

referred to by the Commissioner, where courts of Bantu Affairs

Commissioners and Chiefs have concurrent jurisdiction when a

case is pending in one court proceedings based on the samecause of action should not be instituted in the other courts. Thereis, however, no rule prohibiting this procedure.

In the instant case the default judgment was one dismissing the

summons which is equivalent to an absolution judgment, vide the

numerous cases cited at paragraph 3391 of Warner’s “Digest ofS.A. Native Civil Case Law”. It was therefore not necessary for

Plaintiff to apply for a rescission of the default judgment or to

lodge an appeal against it. He was at liberty to issue a fresh

summons in regard to the same cause of action. See “Jones &Buckle”, 6th Ed. at page 771/2.

The Commissioner has stated in his “reasons for judgment”that this was a final judgment but it in no way resolved the

matter and Plaintiff was entitled to proceed as he did. The fact

that the summons was issued on 7 June and not after the Chiefgranted the absolution judgment on the 23rd in my view doesnot effect the issue. In any event no one was prejudiced as the

actual hearing of the case took place more than three years later.

The Plaintiff was not debarred from instituting the present

action and the special plea should not have been upheld.

The appeal is allowed with costs. The judgment of the BantuAffairs Commissioner is set aside and the case is remitted to the

Court a quo for hearing to a conclusion.

For Appellant : Mr T. N. Makiwane.

For Respondent : Mr J. J. Swartz.

21

NORTH-EASTERN BANTU APPEAL COURT.

CHRISTIAN APOSTOLIC CHURCH IN ZION OFSOUTH AFRICA vs BEN MADONSELA


PRETORIA: 18 June 1970. Before Craig, Acting President, andGafney and Welman, Members.

BANTU LAWCOMMON LAW

Church Body—written constitution—failure to produce consti-

tution—legal entity—Bantu—jurisdiction of Bantu AffairsCommissioner’s Court.

The reader is referred to the full text of the judgment below.

Cases referred to:

Ndebele vs Bantu Christian Catholic Church in Zion, 1956,

N.A.C. 184 (C).

Zulu Congregational Church vs Maseko & A no. 1957,

N.A.C. 146 (N.E.).

Gumede vs Bandla Pukani Bakithi Ltd, 1950 (4) S.A. 560 (N).

Legislation referred to:

Bantu Administration Act, No. 38 of 1927.

Appeal from the Court of the Bantu Affairs Commissioner,Amersfoort.

Craig, Acting President:

The Plaintiff duly represented by the Trustees (now Respondent)sued for and was granted an Order of Ejectment againstDefendant (now Appellant) from premises situated on landregistered in Ihe name of the Plaintiff’s Church PropertyCommittee as Trustee.

An appeal to this Court was noted on a variety of groundswhich will not be set out here.

52699-2

The Court, tnero mot it, raised three points viz.

—

(a) whether the omission to produce and admit the Plaintiff’s

written constitution was tenable; (b) whether the Plaintiff, despite

the admission in the pleadings, is a Bantu in terms of the BantuAdministration Act, No. 38 of 1927; and (c) whether the BantuAffairs Commissioner’s Court had jurisdiction to hear this case.

It is clear from the pleadings and the evidence that the Plaintiff

has a written constitution and that through its Church PropertyCommittee it holds immovable property.

That immediately raises the questions of whether it is a legal

entity apart from its members and whether it is a Bantu as

defined in the Bantu Administration Act, 1927 (Act 38 of 1927)vide Ndebele vs Bantu Christian Catholic Church in Zion, 1956N.A.C. 184 (C) and Zulu Congregational Church vs Maseko& A no., 1957 N.A.C. 146 (N.E.) and so puts the question of the

jurisdiction of the Bantu Affairs Commissioner's Court directly

in issue.

In the case of Gumede vs Bandla Vukani Bakithi Ltd, 1950

(4) S.A. 560 (N) the test to be applied in determining whethera person was a Native or not was held to be one of race and it

was held further that the Defendant was not susceptible of such atest and that jurisdiction lay with the Magistrate’s Court.

In the view of this court the admission of the written

constitution was a sine qua non to enable consideration, inter

alia of the basic legal points raised mero motu and the BantuAffairs Commissioner's judgment could not be allowed to stand.

As the appeal turned on points not raised by the Defendant byway of notice no order was made as to costs.

The appeal was allowed with no order as to costs and the

judgment of the Bantu Affairs Commissioner’s Court was set

aside. The case was remitted back to the Court a quo for pro-

duction and admission of the written constitution of the Plaintiff,

should the Plaintiff decide to continue his action in that court,

and for such other evidence as the parties may desire to producewith the leave of that Court.

Gafney and Welman, Members, concurred.

For Appellant: Adv. J. S. Rossouw i.b. Kleyn & Strydom,Volksrust.

For Respondent: Mr M. Phillips, Standerton.

23

NORTH-EASTERN BANTU APPEAL COURT

BULOSE vs GUMEDE

B.A.C. CASE No. 2 OF 1970

DURBAN : 3 August 1970. Before Craig, Acting President, andGafney and Addison, Members.

ISONDHLO

ZULU CUSTOM

Isondhlo—right of natural father to claim.

Summary: Plaintiff successfully reared his five natural butillegitimate children with the implied consent and without theassistance of their legal Bantu custom guardian, Thereafterthe guardian took possession of the children in assertion ofhis rights and Plaintiff claimed isondhlo from him.

Held: That Plaintiff was entitled to the gift or reward knownas isondhlo.

Cases referred to:

Xaha vs Xaba, 1965, B.A.C. (N.E.) 45.

Bingwa vs Ndinisa, 1947, N.A.C. (C. & O.) 64.

Manzi v.s Mngomezulu, 1943, N.A.C. (N. & T.) 85.

Nzimande vs Pungula, 1951, N.A.C. (N.E.) 386.

Mahaye vs Mabuzo, 1951, N.A.C. (N.E.) 280.

Maliloze vs Luvuno, 1952, N.A.C. (N.E.) 45.

Mahaye vs Mahaso, 1 N.E.C. 280.

Works referred to:

“Principles of Native Law and the Natal Code” by Stafford

& Franklin.

“Bantu Law in South Africa” by Seymour.

Appeal from the Court of the Bantu Affairs Commissioner, PortShepstone.

Craig, Acting President, delivering the judgment of the Court:

The Plaintiff (now Appellant) sued Defendant (now Respondent)for seven head of cattle in respect of isondhlo and a statement of

account in respect of cattle allegedly paid as lobolo. The matter

of the lobolo was not persisted in and the question of isondhlobecame the sole issue. After the award and rescission of a

default judgment and after the trial the Court a quo pronounced a

judgment of “For Defendant with costs”.

24

Plaintiff (and not Defendant as stated in the notice of appeal)appealed to this Court on the following grounds viz.

:

“1. The said judgment was against the weight of evidence.

2. The learned Bantu Affairs Commissioner erred in finding that

Plaintiff was not entitled to claim isondhlo from the Defendantin respect of the seven children which Annie Gumede bore to

Plaintiff.

3. The said judgment was contrary to Bantu Law in Natalin that Plaintiff having brought up the children with Defendant’sknowledge and Defendant not having taken any steps to assert

his rights to the children until after the death of Annie Gumede,Plaintiff was entitled to claim isondhlo from the Defendant in

respect of his maintenance of the children.”

This appeal was originally set down for hearing on 9 March1970, but was deemed to have lapsed in default of prosecutionand struck off the roll with costs on that date. An application for

re-instatement was granted on 3 August 1970 and leave grantedio proceed forthwith with the appeal.

It is common cause that there was an association betweenPlaintiff and Defendant’s sister Annie, that she lived in concu-binage with him for 20 years or more, that seven children wereborn to them, that two of the children died at an unknown age,

that certain cash payments were made by Plaintiff to Defendantthough it was not established whether these were for lobolo orimvala (imvimba—damages for the several pregnancies), that therewas an agreement that the matter be legalised by payment oflobolo, that the children were reared by Plaintiff and that, after

the death of Annie in 1965 Defendant took the children awayfrom Plaintiff and that they now live with him.

Undoubtedly Defendant is the legal guardian and is entitled

to the custody of the five surviving children and is the “loboloholder” in respect of the girls among them, as all are illegitimate.

The question for decision is whether Plaintiff, as their naturalfather is entitled to the customary one beast “isondhlo” in respect

of each child.

According to Stafford & Franklin's “Principles of Native Law”and the Natal Code at page 283 et seqq. “Isondhlo is pureNative law and custom. It can arise from agreement or fromimplied contract as where the guardian is content to leave his

ward with another. As the guardian is responsible for the main-tenance he cannot escape liability if someone else undertakes theduty and the doctrine of non-enrichment applies. Isondhlo is notpayment of moneys, etc., disbursed but is a gift and reward forthe successful rearing of a ward. It is also payable for boys”.

Two of the children died so, obviously, Plaintiff was not success-

ful in rearing them and cannot claim a reward in respect of them—see Xaba vs Xaba 1965 B.A.C. (N.E.) 45.

The Commissioner was not satisfied that Plaintiff as naturalfather of the children concerned was entitled to isondhlo andbased his belief on the decision in Bingwa vs Ndinisa 1947 N.A.C.(C. & O.) 64, a Transkei case in which is was held that a

natural father was not entitled to isondhlo for maintaining his

illegitimate children. I t is trite Zulu law that there is no civi l

responsibility on a natural father to maintain his illegitimate

children vide Stafford & Franklin, supra, at para. 3 on page 283.

lie bantu Attairs Commissioner accepted that the position in the’

Transkei, as laid down in that judgment, would also apply to

Natal and, in consequence, he gave judgment for Defendant.

In that case Sleigh, President, remarked, inter alia, as follows:

“It is, however, contended on behalf of Respondent that anatural father is not entitled to isondhlo in respect of his

illegitimate children. No authority has been quoted for this con-tention and it is admitted by counsel for appellant that he hasnot been able to find a decision in which a natural father hasbeen awarded isondhlo. The facts of this case were therefore

referred to the Native Assessors. They state that a natural father

is not entitled to isondhlo for maintaining his illegitimate children

because they were procreated illicitly and there was no agreementbetween the father and the woman’s guardian that the formershould maintain them (my underlining). Although this expression

of opinion is contrary to the fundamental rule that a person whomaintains the child of another is entitled to compensation weaccept the Assessors’ opinion, since we have been unable to find

any previous decisions on the point to the contrary. At first sight

this may appear to be inequitable, but it is not so since theDefendant had the right to pay dowry for the woman and thuslegitimise the children”.

The decision in that case is thus as admitted by the learnedPresident, no more than an acceptance of the Assessors’ opinion.Not only is it contrary only to one fundamental rule, it also

appears to lose sight of another fundamental rule viz. that the

father of an illegitimate child, unless he is or subsequently becomesthe husband of the child’s mother, cannot be held liable for the

maintenance of the child and cannot, in accordance with theprinciples of Bantu law, be compelled to contribute towards the

child’s maintenance

—

vide, inter alia, Manzi v Ngomezulu, 1943N.A.C. (N. & T.) 85; Nzimande vs Pungula, 1951 N.A.C. (N.E.)

386; Mahay

e

v Mabuzo, 1951 N.A.C. (N.E.) 280 and Mahloze v

Luvumo, 1952 N.A.C. (N.E.) 45.

Prima facie, at any rate, where the natural father does maintainhis illegitimate children, he would appear, conversely, to have a

claim against the quardian and I am, with respect, not persuadedthat his right to claims isondhlo from the guardian should be so

lightly dismissed.

It remains to be pointed out, also, that in the Transkei the

natural father has, apart from paying lobolo, an alternative

remedy of obtaining full custody and guardianship of his illegiti-

mate child by paying the customary fine for seduction of the

child’s mother and, in addition, by paying customary isondhlovide Seymour’s “Bantu Law in S.A.”, third edition, pages 220-221but this custom does not obtain among the Zulu vide page 223 ofthe same work.

It follows, therefore, that, in the instant case, the only mannerin which Plaintiff could have retained his children was throughthe payment of lobolo which, according to his evidence he could

26

obviously not afford. Although, in Bantu law, he was under noobligation to maintain them, he nevertheless did. ConsequentlyDefendant—whose duty it was in accordance with Bantu law to

have maintained the children—obtained custody and guardian-ship of the children without in any way complying with the

obligations of a guardian of illegitimate children.

Plaintiff’s claim seems also prima facie to accord with the

generally accepted basic principles of isondhlo viz. that whenevera Bantu person maintains a person other than one over whomhe possesses property rights, he is entitled to compensation~knownas “isondhlo’’. Plaintiff, even though he is the natural father ofthe children'll such a person. In this connection see Stafford &Franklin’s work, supra, at para. 1 on page 283 which reads, inter

alia "whenever a person maintains a girl or woman whose dowryrights vest in another, such person is entitled to compensation for

the maintenance at the rate of a beast for each girl so main-tained . . As pointed out earlier isondhlo is also payable forboys.

Contract or obligation is usually in respect of children, but is

not necessarily confined to them. The obligation may be basedon agreement, or may arise from an implied contract as wherethe guardian is content to leave his wards to remain with aparticular person, who has no property rights in them

—

vide

Stafford and Franklin : "Principles of Native Law and the NatalCode” at page 281, and the authorities quoted by the authors.

Ex facie the record Defendant made two abortive attempts to

assert his rights in respect of Annie and the children born up to

that time, within the first two years of the association betweenPlaintiff and Annie but thereafter, possibly deluded by an allegedlobolo agreement, sat back for 18 or more years and did nothing.

His acquiescence in the rearing of the children by Plaintiff mustbe inferred. Theinstant case is, accordingly, further distinguishablefrom Bingwa’s case, supra, where there was no consent by thelegal “lobolo holder”. It is also clear, as stated earlier, that

Defendant made no effort to maintain these children as was his

duty—see Mahaye vs Mabaso 1 N.E.C. 280. To permit him, in

all the circumstances, to assume possession of the children withoutcompensating Plaintiff would be a defiance of the doctrine of non-enrichment.

My conclusions are, therefore, that as far as the Zulu peopleare concerned a natural father of illegitimate children may fall

within the category of those who are entitled to claim isondhlowhere the legal holder of proprietory rights in such children has

consented to his rearing the children.

In the result the appeal is allowed with costs and the judgmentof the Court a quo is altered to read "For Plaintiff for five headof cattle with costs”.

Gafney and Addision, Members, concurred.

For Appellant : Adv. P. C. Combrinck.

For Defendant: Adv. J. M. S. Bristowe.

27


MBATHA vs MABASO


ESHOWE, 21 July 1970. Before Craig, Acting President andNoble and Luwes, Members of the Court.

BANTU (ZULU) LAWPROCEDURE

Summons

—

defective—non compliance with rules—locus standi

of parties to be alleged—contradictory and untruthful testimony—evidence on points not alleged in summons—execution in

accordance with tribal law and custom—substitution of heir

before execution—Bantu custom—immediate inheritance byheir—liability for predecessor s debts—limited to extent ofassets inherited.

Summary: Plaintiff failed in an action in which he suedDefendant for four head of cattle said to be his own propertyby way of purchase and allegedly wrongfully removed fromthe possession of people with whom he said he had sisa’d

them. His summons was defective though this point wasnot taken in the Court a quo. His evidence was contradictoryand, at times, blatantly untruthful: He said he had not beensued before execution but it was clear there was a judgmentagainst his late father and that the latter had owned threecattle which Plaintiff had inherited after the former's deathand had not acquired by purchase. It was clear that Plain-

tiff’s father had sisa’d the cattle with other persons and that

Plaintiff had not done so.

Held: That Plaintiff “inherited” his late father’s debts immedi-ately upon the latter’s death and must pay them to the

extent of assets inherited by him.

Held: That the judgment awarded against his deceased father

and not satisfied prior to death was such a debt.

Held: That Plaintiff had inherited assets to the extent of three

head of cattle immediately on his father’s death.

Held: That substitution of an heir for his late father as judgmentdebtor before execution can be levied is unknown to Bantulaw and custom.

Cases referred to:

Sokhele vs Shelembe, 1964 B.A.C. (N.E.) 21.

28

Works referred to:

Native Law in South Africa, second edition by Seymour.

Laws referred to:

The Natal Code of Bantu Law.

Rules referred to:

‘Bantu Affairs Commissioners’ Courts Rule 35 (7).

Chiefs’ and Headmen’s Civil Courts Rule 8 (1).

Appeal from the Court of the Bantu Affairs Commissioner,Mahlabatini.

Craig. Acting President:

Plaintiff (now Appellant) sued Defendant (now Respondent) in

the Bantu Affairs Commissioner’s Court for the return of fourhead of cattle or their value R170 allegedly wrongfully removedby the latter from the possession of one Foshole Mbata during1968 and judgment was given “for Defendant with costs”.

An appeal to this Court against that judgment was noted byPlaintiff on the following grounds:

“1. That the judgment is against the evidence and weight ofthe evidence.

2. That the Court erred in finding that Plaintiff was liable to

satisfy the judgment of the late Mfelafuthi Mbatha in theabsence of a judgment directed against Plaintiff.

3. That the evidence of both Respondent and his witnessFosholo Mbatha disclosed that the late Mfelafuthi Mbatha hadno attachable assets, and his heir could therefore not be held

liable.”

At the outset I express this court's displeasure at the haphazardand excipiable manner in which Plaintiff’s summons was pre-

pared by his attorney who was either unaware of or deemed it

unnecessary to comply with the peremptory requirements ofRule 35 (7) of the Rules for Bantu Affairs Commissioners’ Courts.That rule prescribes, inter alia, that the summons shall also showthe “sex, occupation and the residence or place of business ofthe Plaintiff”. There was no compliance with this requirement.The summons is further defective in that in the “particulars ofclaim” the person who claimed “Against the Defendant for the

return of four head of cattle, etc., etc.” was not identified

although such identification was made in the alternative claimnor was there a disclosure of the ground on which this unnamedperson based his locus standi in judicio.

It is common cause that late Mfelafuthi, father of Plaintiff

was indebted to present Defendant to the extent of three head ofcattle as the result of a Chief’s Court judgment, that Plaintiff is

Mfelafuthi’s heir and that cattle in the possession of Fosholo andMasunduzini were attached in settlement of the judgment.

29

Plaintiff’s efforts to prove that the cattle concerned were at

all times his own property and not those of his late father

Mfelafuthi were an insult to the intelligence of the Court a quo.This evidence was a mass of inconsistencies, contradictions and at

least one blatant untruth.

He said he sisa’d four cattle with Fosholo and then changed that

information and said he sisa'd one beast with Fosholo and that

it had increase of a red heifer and two red bullocks. In the next

breath he said the original sisa’d cow had had increase of three

heifers. In valuing the cattle he said that that of the original cowwas R60. of the first calf R40, of the second R32 and of the

third calf R80. In the next breath the third calf became an ox.

Plaintiff went on his way by stating that the third calf wasnot the progeny of the cow he had sisa’d with Fosholo but that of

a cow bought by himself, which he said he sisa’d with Msun-duzeni and finally under cross-examination he gave himself the

lie direct by saying that the cow sisa’d with Fosholo had hadincrease of only two heifers.

In examination in chief Plaintiff said he did not sisa cattle

with anyone but Fosholo. Under cross-examination he was bla-

tantly deceitful when he said he had not been asked if he hadsisa’d cattle with Masunduzini. He continued on his path of

deception by saying that Msunduzini and Fosholo live in the samekraal and in the next breath by saying they live in neighbouringkraals.

Plaintiff said that the cow he sisa’d with Fosholo had beenbought by him from one Mkukuleni Mbata for R20 while Mku-kuleni stated that he had sold Plaintiff a female beast over 10

years ago for R18. It is perhaps fortunate that Plaintiff wasnot asked to explain how this cow’s value had increased to R60.

Defendant admitted the attachment and said it was made after

he had consulted the Chief who maintained a sisa register. Further,according to him, the cow sisa'd with Fosholo was originally

bought by Mfelafuthi from him (Defendant). Plaintiff did notdescribe the cow which he alleged he bought from Mkukuleniand sisa’d with Fosholo but Mkukuleni said it was a red cowwith white sides. In view of the unacceptable nature of Plaintiff’s

evidence it cannot be accepted that Plaintiff and Mkukulenispoke of the same beast.

Fosholo Mbata testified that late Mfelafuthi sisa’d a red heifer

with him and that it bore one red heifer calf.

This lends support to the view that the beast which Plaintiff

bought from Mkukuleni was not concerned in this matter at all

as the latter said he sold Plaintiff a cow and calf. He denied thatcattle were sisa’d with him by Plaintiff. There seems to be noreason to doubt this evidence.

Plaintiff brought no evidence in corroboration of an allegedpurchase of a beast from one Mkwanazi and subsequent sisa ofthat beast with Msunduzeni. I question his right to testify on thatpoint at all as his summons did not mention a claim for a beastattached in Msunduzeni’s possession and no application wasmade or granted for amendment of the claim. For some reason

30

best known to himself Defendant’s attorney allowed this evidenceto be led without demur and in refutation, led hearsay evidenceof an admission by Msunduzeni. Admittedly, the beast was in

Msunduzeni’s possession and the Court elicited direct evidencethat it was registered in his name.

In the light of Plaintiff’s highly unsatisfactory evidence ofownership generally I have not been persuaded that the Com-missioner erred in rejecting his evidence and preferring that led

by Defendant and am of the view that the first ground of appealfails and that the cattle were the property of late Mfelafuthi, thatthey were sisa’d by him with Fosholo and Msunduzeni and that

Plaintiff never acquired ownership in them by way of purchase.

It is common cause that Plaintiff is the son and heir of the late

Mfelafuthi. As such he acquired ownership of the cattle by wayof inheritance. It is common cause that Defendant was awardeda judgment for three head of cattle against Mfelafuthi duringthe latter’s lifetime but did not execute on it until after his

death. Execution was obviously levied under Bantu Law andCustom vide Regulation 8 (1) of Government Notice R. 2082of 1967 (Rules for Chiefs’ and Headmen’s Civil Courts) i.e. in

accordance with the recognised customs and laws of the tribe.

No evidence was tendered by Plaintiff that the law and customof his tribe requires that he be substituted judicially for late

Mfelafuthi as a prerequisite to execution. I am not aware of anysuch requirement under the Bantu system.

It is trite law that a Bantu heir steps into the shoes of his

predecessor immediately on the death of the latter and inherits,

inier alia, his debts and obligations—see Seymour “Native Law in

South Africa”, second edition, page 195-197, but that in Natalhe becomes liable for such debts and obligations only to the

extent of the assets to which he has succeeded vide section 116of the Natal Code of Bantu Law (Proclamation R. 195 of 1967).

There can be no doubt that the award of the Chief became a

“debt” by way of novation vide Sokhele vs Shelembe 1964 B.A.C.(N.E.) 21 and the remarks of Wessels J. quoted at page 22. Thisdebt was “inherited” by Plaintiff.

In the light of these remarks I find no substances in the secondground of appeal.

I can find no virtue in the third ground of appeal as, vide myremarks supra these cattle were the property of late Mfelafuthiand Plaintiff inherited them. He is, accordingly, liable to dischargethe debt he inherited to the extent of the assets he inherited viz.

three head. His evidence that there were four cattle attached

is based on hearsay and unacceptable.

In the result the appeal was dismissed with costs.

Noble and Luwes, Members, concurred.

For Appellant: Mr D. T. Gardner i.b. H. L. Myburgh, Vryheid.

For Respondent: Mr W. E. White i.b. Uys & Boshoff, Vryheid.

31

IN THE SOUTHERN BANTU APPEAL COURT.

ERIC GWILIZA vs SILBA ROSE BULELWA NGCEZU


UMTATA: 15 June 1970. Before E. J. H. Yates, Esq., Presidentand Messrs Adendorff and Matthews, Members.

SEDUCTION

Written undertaking to pay damages admissible as evidence—

-

document in vernacular should be translated into an official

language—damages under Common Law—considerations

Summary: Defendant sued Plaintiff for R300 as damages for

seduction resulting in her pregnancy. An unstamped documentin Xhosa admitting the seduction and undertaking to payR300 damages was handed in as evidence.

Held: The document was admissible even though unstampedas it was not relied upon as a promissory note.

Held further: That documents written in the Xhosa languageshould be accompanied by a translation into an official

language but this is not peremptory.

Held further: Defendant is entitled to lying-in expenses cal-

culated as the equivalent of three months earnings.

Held further: Damages of R200 for loss of virginity notexcessive in the circumstances.

Appeal from the Court of the Bantu Affairs Commissioner,Mount Ayliff.


:

This is an appeal from a judgment of a Bantu Affairs

Commissioner’s Court for Plaintiff (now Respondent) for “R100loss of earnings and R200 for damages for loss of virginity andcosts of suit”, in an action in which she sued Defendant (nowAppellant) for R300 damages alleging that he had seduced herand rendered her pregnant and that he had admitted and agreedin writing to pay this amount.

Defendant denied the allegations and stated that he hadpromised to pay the damages demanded under duress.

An appeal has been brought on various grounds which it is

not necessary to set out in extenso and which included an appealagainst the quantum of damages.

32

Mr Berrange contended first of all that the document whichwas admittedly signed by Defendant in which he agreed to payR300 for causing Plaintiffs pregnancy was a promissory noteand was not properly stamped and therefore could not be relied

upon but it is clear that Plaintiff only produced the documentas corroborative evidence of the seduction. He further arguedthat as the document was written in the Xhosa language and atranslation had not been handed in at the inception of the caseit should not have been admitted. However, it is clear from aperusal of the judgments in the cases of Mda vs Gcanga 1957N.A.C. 50 at p. 52 and Dlamini vs Mbele 1953 N.A.C. 37 that

the injunction not to admit such documents without a translation

was directed at the presiding officer to ensure that the contentswere fully intelligible to all concerned with the case. See also

Batelo vs Vapi 1957 N.A.C. 74 at p. 77. In the instant case thedocument was translated into English during the hearing andDefendant admitted in evidence that it had been done correctly.

Once these two points were disposed of no further argumentwas addressed to the Court in regard to the merits of the case.

In regard to the quantum of damages, however, Mr Berrangereferred to the case of Masunda vs Xazwe (1949) I N.A.C. (S.D.)

87 as authority for the proposition that because seduction tookplace in 1964 and Defendant did not become pregnant until 1967she was not entitled to any compensation for loss of earnings.

A reference, however, to the case of Ngqaka vs Kula 1946 N.A.C.(C. & O.) 71 at p. 73 makes it clear that although a woman in

such a case is not entitled to loss of earnings she is entitled to becompensated for lying-in expenses which may be calculated as the

equivalent of three months salary, and that the particulars ofclaim are wide enough to cover a claim for lying-in expensesat Common Law. See also Bujela vs Mfeka 1953 N.A.C. 119 at

the bottem of p. 122, Mda’s case, supra at p. 53 and Ngwanevs Vakalisa 1960 N.A.C. 30 at p. 33.

Plaintiff was an educated woman and a teacher as was hermother and the circumstances here are similar to those in

Ngwane’s case supra where damages for defloration of R200were awarded.

In my view the damages granted here were not excessive andthe appeal is dismissed with costs. However, the judgment is

altered to read “For Plaintiff for R100 for lying-in expenses andR200 for loss of virginity and costs of suit.”

Adendorff and Matthews, Members, concurred.

For Appellant: Mr A. T. Berrange

For Respondents: Mr M. G. K. Moshesh

33


BUTHELEZI vs MAGWAZA


PIETERMARITZBURG: 7 July 1970. Before Craig, ActingPresident and Neuper and Warner, Members.

DEFAMATION

“Report back" meeting—consultation of witchdoctor—witch-

craft—volenti non fit injuria.

Summary: Plaintiff was awarded R100 as damages for defama-tion involving an imputation of witchcraft, in a Chief’s

Court and an appeal to the Bantu Affairs Commissioner’sCourt was dismissed. Both Plaintiff and Defendant took part

in one or more visits to a witchdoctor undertaken for the

purpose of establishing the cause of the illness of oneKanyile. After the second visit the Defendant reported to

a meeting of those interested, including the Plaintiff, whathad been said by the witchdoctor without associating himselfin any way with the contents of the statement and Plaintiff

chose to assume the role of the party “pointed out”.

Held: That Defendant had merely “reported back” what he hadbeen told by the witchdoctor.

Held: That in so doing he had not defamed Plaintiff.

Held: That by taking part in the visits to the witchdoctorPlaintiff made himself a party to these supernatural proceed-ings and the maxim volenti non fit injuria was applicable.

Cases referred to:

Miya vs Miya, 1947, N.A.C. 108.

Ziqubu vs Ziqubu, 1954, N.A.C. 72 (N.E.).

Legislation referred to:

Bantu Administration Act—Act 38 of 1927, sections 10,

12 (4). 17 (4).

Appeal from the Court of the Bantu Affairs Commissioner,Babanango.

Craig, Acting President

:

This case had its inception in a Chief's court where the Plaintiff(now Respondent) sued Defendant (now Appellant) for and wasawarded R100 as damages for defamation. The nature of thedefamation was not recorded nor did the court insist, as it

should have done, on the inclusion of the Chief's written Record.

34

An appeal to the Bantu Affairs Commissioner's Court wasdismissed, without an order regarding costs being made, and theChief's judgment was confirmed.

An appeal to this Court was noted on the following grounds

:

1. The learned Assistant Bantu Affairs Commissioner erredin coming to the conclusion that the Defendant had been defamedand that he was entitled to any damages.

2. The learned Assistant Bantu Affairs Commissioner erredin concluding that the Defendant had uttered and published anydefamatory words of and concerning the Plaintiff.

3. The learned Assistant Bantu Affairs Commissioner erred in

coming to the conclusion that the weight of evidence was in

favour of the Respondent.

4. The learned Assistant Bantu Affairs Commissioner shouldhave on the evidence before him arrived at the conclusion that

the Plaintiff had not been defamed and had suffered nodamages.

5. The learned Assistant Bantu Affairs Commissioner failed

to attach sufficient weight to the material conflicts in the evidenceof the Respondent and his witnesses.

6. Taking the evidence as a whole the learned Assistant BantuAffairs Commissioner should have come to the conclusion that

the balance of probabilities was in favour of the Defendant andshould have given judgment in favour of the Defendant.”

From the evidence recorded it appears that Plaintiffs complaintwas that Defendant had alleged that he was a wizard and that

he had killed a man called Kanyile.

The Commissioner’s ‘‘Reasons for Judgment" were of little

assistance to this Court because although he recorded his findingsof fact he gave no indication of how he arrived at them, nordid he comment on the demeanour of the witnesses. In supportof his judgment he embarked on a short discourse on the serious-ness of an imputation of witchcraft and quoted several decidedcases. This Court did not require to be reminded of this viewof such imputation.

Plaintiff alleged that Defendant called him a wizard andaccused him of having killed Kanyile. This evidence stoodalone as Plaintiff’s witness Ntombela did not support him.He stated that he did not hear Defendant call Plaintiff a wizard.He also alleged that Plaintiff and Kanyile’s son were togetheron the occasion of the ’first visit’ to the "sangoma”. This suggeststhat Plaintiff believes in witchcraft.

Defendant’s evidence is to the effect that he and six otherswent to consult a "sangoma” on behalf of Kanyile to find outwhat was the cause of the latter's illness. This was subsequent to

the visit paid by Kanyile’s son and Plaintiff for the samepurpose. According to Defendant the sangoma “pointed out” the“man who came with Kanyile" as the wizard without naming suchman. At a meeting called by Kanyile thereafter Defendant said hereported what the sangoma had said whereupon Plaintiff stood

35

up and said “I'm the one who accompanied Kanyile it meansnow I’m the wizard”. Defendant denied having said that Plaintiff

was a wizard.

Defendant's evidence was confirmed by William Kanyile exceptin regard to the number of persons who went to the sangoma.

In my view the evidence shows that all Defendant did was to

state at a “report back” meeting what the sangoma had said,

that he did so without malice: and that he did not specifically

name any person as having been pointed out as a wizard nor did

he call Plaintiff a wizard. It is clear that Plaintiff, apparently abeliever in witchcraft, chose to assume the role of the person whowas pointed out. It is clear, too, that Plaintiff was a party to theproceedings entailing visits to the sangoma for the purpose ofdiscovering what the cause was of the elder Kanyile's ailmentsand the maxim volenti non fit injuria applies [Miya vs Miya 1947N.A.C. 108 and Ziqubu vs Ziqubu 1954 N.A.C. 72 (N.E.)].

In these circumstances the Court a quo erred in finding in

favour of Plaintiff and the appeal was allowed with costs andthe Bantu Affairs Commissioner's judgment was set aside andfor it was substituted one allowing “with costs the appeal against

the Chief's judgment and altering the latter's judgment to one for

Defendant with costs”.

The judicial officer in this matter appears to have tried this

case in his capacity of a magistrate. He should be well awarethat a magistrate has no jurisdiction in such cases vide sections

10 and 17 (4) of the Bantu Administration Act (Act 38 of 1927).

It will be presumed that he used the magisterial title

inadvertently. Furthermore he signed his reasons for judgment in

the capacity of A /Bantu Affairs Commissioner, whatever that

may mean. If the letter “A” was intended to indicate “Assistant"

then he had no jurisdiction to hear the appeal vide section 12 (4)

of Act 38 of 1927. supra. If the “A” was intended to indicate

“acting" he should have made this plain. The use of ambiguousdiminutives is deplorable and must be refrained from in the

future.

Neuper and Warner, Members, concurred.

For Appellant: Adv. W. O. H. Menge i.b. Meer & Singh,

Verulam.

For Respondent: Adv. P. D. Allan i.b. R. Dunn & Co.,

Dannhauser.

36


COMMISSIONER

MAJOLA vs NGUBANE


PIETERMARITZBURG: 7 July 1970. Before Craig, ActingPresident and Neuper and Warner, Members.

DEFAMATION

Privileged occasion—what is—what is not—family matter fordiscussion.

Summary: Plaintiff was awarded damages for defamation in a

Chiefs Court. An appeal to the Bantu Affairs Commissioner’sCourt was upheld as it was held, inter alia, that the occasionon which the defamation occurred was a privileged one, as

the subject for discussion and settlement was a family disputebetween Defendant and his uncle.

Held: That the circumstances disclosed established that whatshould have been a family gathering was, in fact, a public

meeting and, accordingly, was not a privileged occasion.

Cases referred to:

Lokwana Mlilo vs Ndolongo Mlilo, 1936, N.A.C. (T & N) 44.

Appeal from the Court of the Bantu Affairs Commissioner,Kranskop.

Craig, Acting President:

This case had its inception in a Chief's Court where Plaintiff

(now Appellant) sued Defendant (now Respondent) for R100damages for defamation by means of an imputation of witchcraft

and was awarded RIO and costs. An appeal to the Bantu Affairs

Commissioner’s Court was upheld, without an order being madein respect of costs in that Court and the Chief’s judgment wasaltered to “Judgment for Defendant with costs”.

An appeal to this Court has been noted on the following

grounds

:

“1. That the said judgment is contrary to Law and against the

weight of evidence.

2. That the Respondent failed to establish that the defamatory

utterances complained of were uttered upon a purely privileged

occasion in as much as Respondent in evidence contended that

only members of his family were present, whereas it was proved

that neighbours unrelated to Respondent were also present at the

meeting.

37

3. That the privileges claimed by the Respondent was destroyedwhen these utterances were made in the presence and hearing ofsuch neighbours.

4. That in the case of Lokwana Mlilo vs Ndolongo Mlilo,reported in Native Appeal Court decisions (Transvaal and Natal)1936—Case 17 at page 44, it was held that the repetition ofdefamatory words is actionable.

5. That if it be held that the words complained of were utteredupon a privileged occasion then the Appellant has discharged theonus of establishing express malice on the part of the Respondent.

6. That by his actions and words express malice can be inferredas the Respondent identified himself with the defamatoryutterances he was repeating, and the evidence as a whole includingthat of the induna has established that when Respondent realisedAppellant was present he addressed the following words to theAppellant ‘Majola, you have failed to kill me and you are theMtakati—You must not walk around here at Mambulu’.

7. That the learned Bantu Affairs Commissioner erred in

holding that the Appellant was not entitled to damages to cleanse

himself of the stigma cast upon him by the Respondent.”

It seems that a meeting was convened by an induna at therequest of Defendant the primary object being to settle differences

between Defendant and his uncle: This was supposed to havebeen a family gathering so it is not clear why the induna shouldhave convened it. Apparently it was not held within the precincts

of a kraal but out in the veld beside a road and neighbours wereinvited to be present. Apparently passers-by were not prohibited

from attending and it seemed that that is how it was that Plaintiff

came to be there.

In my view the nature of the meeting was changed from that

of a private family gathering to that of a public meeting and,thus, it was not a privileged occasion.

There is no doubt that Plaintiff was the subject of animputation of witchcraft by Defendant albeit that the latter onlyrepeated what had been told him by his aunt, Kanyisile.

I hold the view that this appeal must succeed.

The appeal was allowed with costs and the Bantu Affairs

Commissioner’s judgment was set aside and for it was substituted

“The appeal is dismissed with costs and the Chief’s judgment is

confirmed”.


For Appellant: Adv. N. M. Fuller.

For Respondent: Adv. W. O. H. Menge.

52699-3

38

IN THE SOUTHERN BANTU APPEAL COURT

BUNGQU SIYANGE vs NTAMEGUSHA BONENI


UMTATA: 19 June 1970. Before Yates, President and MessrsAdendorff and Mbuli, Members.

REVIEW PROCEEDINGS

Refusal to afford Applicant an opportunity to be represented—no irregularity in the circumstances

Summary: Plaintiff sued five Defendants for damages for

assault. Plea filed in which Defendant 3 (now Applicant)admitted inflicting injuries on Plaintiff but alleged this

happened when Plaintiff was found amongst his sheep at

night. After numerous postponements default judgmentgranted which was later rescinded. At subsequent hearing.Defendant 5 only present. Defendants' attorney was reportedto be ill. Judgment again granted against the Defendantsjointly and severally. Immediately thereafter Defendants’attorney wrote to say that he has been instructed to applyfor rescission. Some six months later he filed an application.

On day of hearing only Defendant 3 present and he intimated

he could not proceed in the absence of his attorney. Theapplication was refused. Applicant then brought the matteron review alleging gross irregularity.

Held: Contents of affidavit accompanying application for rescis-

sion disclose relevant facts. Proceedings had been protracted

and furthermore application for rescission was hopelssly outof time. No prejudice had been suffered by refusal to grant a

further postponement to brief another attorney.

Application from the Court of the Bantu Affairs Commissioner,Mqanduli.

Yates (President):


:

On 24 January 1962 Plaintiff (now Respondent) issued a

summons against the five Defendants claiming damages of R180for assault, wrongful detention and contumelia. The Defendantsfiled a plea in which Defendant 3 (now Applicant) admittedinflicting injuries on Plaintiff but alleged that this happenedwhen Plaintiff was found inside his sheepfold at night withintent to steal. There were a number of postponements andeventually on 4 August 1966, after the Defendants’ attorney hadstated that he could not account for the absence of his clients,

and had withdrawn from the case, Plaintiff’s evidence was recor-

39

ded and a default judgment granted in his favour. Despite theopposition of Plaintiff’s attorney this judgment was rescindedon 4 April 1968.

Plaintiff’s attorney then set the case down for hearing on25 September 1968 and on that day Defendant 5 was present butthe other Defendants and their attorney, Mr Ntswayi, who wasill, were absent. Plaintiff’s evidence was again taken and a

judgment recorded against all the Defendants jointly andseverally. In an undated letter received by Plaintiff’s attorney on26 September 1968 Mr Ntswayi informed him that he had beeninstructed to apply for a rescision of the judgment and on 29March 1969 (some six months later) he filed an application, onbehalf of Defendant 3 only, for the rescission of the defaultjudgment granted against him on 25 September 1968. The appli-

cation was heard on 30 July 1969. Defendant 3 was present buthis attorney was absent on account of illness. Plaintiff’s attorneyaddressed the court pointing out that the application did notcomply with Rule 77 (1) of the Rules for Bantu Affairs Com-missioners’ Courts (Government Notice 2083 of 1967) as it had notbeen filed within one month after the default judgment came to

the knowledge of the party (which includes the legal practitioner)

against whom it was given and further that there was no requestfor an extension of time in which to file it. Vide Rule 87 (5) (b).

Defendant 3 intimated that he could not proceed in the absence ofhis attorney and that he had made no other arrangements. The <

application was then dismissed with costs and the judgmentconfirmed after Defendant 3 had been given an opportunity to

address the court and had failed to do so.

The matter has now been brought on review on the groundthat the judicial officer committed a gross irregularity in notaffording Applicant an opportunity to be represented in the

matter either by his attorney of choice or by any other legal

practitioner that he could have chosen.

However, it is difficult to see what prejudice he could havesuffered. His affidavit which accompanied his application for

the rescission of the default judgment against him set out the

grounds of his application which were, briefly, that he was not

notified by his attorney that the case had been set down for

re-hearing on 25 September 1968. Respondent’s replying affidavit

laid stress on the fact that Defendant was present in court on4 April 1968, when the default judgment was rescinded andpointed out that it was incumbent on him to keep himself in-

formed of future developments, which he failed to do.

Bearing in mind that the Assistant Bantu Affairs Commissionerhad these affidavits before him and that there was little, if any-

thing, that Applicant could add; that this was the second appli-

cation for rescission of the judgment; the protracted nature of

the proceedings and that there must be finality in these matters;

and furthermore that the application was hopelessly out of time,

it does not seem to me that any gross irregularity or illegality

has been committed.

Having come to this conclusion there will be no order except

that Applicant must pay the costs of these proceedings.

Adendorff and Mbuli, Members, concurred.

For Applicant: Mr D. Koyana.

For Respondent: In default.

40

LN THE SOUTHERN BANTU APPEAL COURT.

TYIWA MPLNGA vs GOXGQONGQO MPLNGA andNOXKUMBI MPUNGA


UMTATA: 18 June 1970. Before Yates. President and MessrsAdendorff and Botha. Members.

EXECUTION

Risk of loss of caltie attached in excess of judgment and dyingunder attachment to be borne by judgment creditor—Point onwhich case turned not raised in the pleadings.

Summary: In execution of a judgment for 25 head of cattle

in favour of Defendant, 25 head were attached from Plaintiff

and because of movement restrictions, handed to the Head-man for custody. Subsequently a further three head wereattached from him and also handed to the headman. Of the

28 head attached three died and Defendant took 25 head in

satisfaction of his judgment.

Held: That as the judgment was satisfied by the attachmentof the original 25 heard of cattle the attachment of the

remaining three was unauthorised and the Plaintiff wasentitled to their return.

Held further: Where the real question to be decided was not

raised in the pleadings but was fully canvassed and the

judgment was based thereon the appeal should be consideredaccordingly.

Appeal from the Court of the Bantu Affairs Commissioner,Mqunduli. Yates (President):

Yates (President) delivering the judgment of the Court:

This is an appeal from a judgment of Bantu Affairs Commis-sioner's Court for Plaintiff 1 (now Respondent) for three headof cattle or their value R30 each plus costs.

During the hearing of the case the claim by Plaintiff 2 waswithdrawn and the claim of Plaintiff 1 was amended to onefor three head of cattle or their value R150. Plaintiff averred in

his particulars that Defendant (now Appellant) had in 1963obtained a judgment against him and one Keke Mpunga. whichwas confirmed on appeal to the Bantu Affairs Commissioner’sCourt, for 25 head of cattle or their value R40 each, 50 sheepand 20 goats or their value at R6 each and that in execution of

that judgment three of his cattle were attached which did not

form part of the specific cattle claimed by Defendant.

41

Save for admitting executing judgment in his favour by wayof writ and admitting that the stock referred to in the judgmenthad been handed to him. Defendant specifically denied havingcaused Plaintiff’s stock to be attached as alleged.

An appeal has been brought on the following grounds:

“(a) That the judgment is against the weight of evidence andprobabilities of the case.

(b) That the judgment in effect negates a judgment and furtherobstructs the execution of finality of a judgment of the SouthernBantu Appeal Court, sitting in Umtata on 25 October 1967, in thematter of Gongqonggo Mpunga and Keke Mpunga (Appellants)vs Tyiwa Mpunga (Respondent), Case 49/67 which dismissed theappeal with costs, thereby affirming the judgment of the BantuAffairs Commissioner’s Court, Eliiotdale, for Plaintiff for stockor its alternative value.

(c) That judgment in effect leaves present Appellant’s judg-ment in Case 49/67 unsatisfied in that it reduces the number ofcattle received by Appellant by virtue of the Warrant of Execu-tion in Case 49/67 from 26 to 23.

(d) That the Court having come to the conclusion that thebeasts claimed by present Respondents in the instant case werevalued at R30 per beast, erred in holding that 26 head of cattle at

the Court’s valuation of R30 per beast could satisfy a judgmentof 25 head of cattle at R40 per beast in terms of the judgmentin Case 49 of 1967.

(e) That the three head of cattle which died in the custody ofthe Headman included in the 29 head of cattle attached by virtue

of the Warrant of Execution in Case 49/67 (B.A.C. Court Case77/1963) died to the prejudice of the Appellants in the case as the

Messenger of the Court had not as yet accounted to the Respon-dent in Case 49/67 who is Appellant in the instant case.

(f) That the Appellant in the instant case, who was Respon-dent in Case 49/67 cannot by reason of the judgment in the

instant case re-issue the Warrant of Execution in Case 49/67 onwhich is endorsed the execution of the full judgment in the said

case.”

It is not disputed that a warrant of execution was issued

against Plaintiff 1 and Keke in terms of the above judgment andthat, excluding sheep and goats which are not here in question,

the Deputy Messenger of the Court attached on 29 February 1968

20 head of cattle from Keke and six from Defendant 1, i.e. 25

to satisfy the judgment and one to cover the Messenger’s costs,

and that they were handed over to the headman for custody as a

permit was not immediately available for their removal. On3 April 1968 the Messenger received a letter from Defendant’s

attorney directing him to attach five more cattle which Plaintiff

was alleged to have hidden away and subsequently three wereattached. Of the 29 head attached 25 were taken by Defendant,

three died and one was for costs. Defendant contended that hehad received 25 head in satisfaction of his judgment and was not

responsible for the loss occasioned by the death of the other

three which died under attachment.

42

Mr Muggleston who appeared for the Defendant did not pressground (d) of the appeal. However, he contended that the basis

of the claim as set out in the plea was that the three cattle

claimed belonged to Plaintiff and were not liable to attachmentas the judgment on which the writ was based only related to

specific cattle which did not include those belonging to Defendant.In other words the question to be decided on the pleadings waswhether the three cattle belonged to Defendant or not. However,it is quite clear from the evidence led in the case, and the Commis-sioner’s reasons for judgment and the notice of appeal, that the

question where the Plaintiff or the Defendant should suffer theloss occasioned by the death of the three cattle after attachmentand before delivery to defendant should be borne by the formeror the latter was fully canvassed and was the point on which the

case was decided.

The original judgment was, inter alia, for delivery of 25 headof cattle or their value at R40 each and when the Messengertook possession of the cattle in the presence and with the con-currence of the Defendant they were judicially attached videsubrule 70 (4) of the Rules for Bantu Affairs Commissioners'Courts contained in Government Notice 2083 of 1967, and “TheCivil Practice of the Magistrates’ Courts in S.A.” by Jones &Buckle, 6th Ed. at p. 653/4. The writ was satisfied and as con-

ceded in the last paragraph of the Notice of Appeal, it was of nofurther force and could not be re-issued.

An interpleader action was instituted by Plaintiff after the

26 cattle had been attached and the letter written to the Messen-ger by Defendant’s attorney was obviously an attempt to havemore cattle available should the interpleader claim succeed. Heclearly had no right to instruct that more cattle should beattached nor should the Messenger have acted on his letter. See

Jones & Buckle at p. 649 and the case of Duba and others vs

Ketsikili and others, 1924, E.D.L. 332, and p. 343, in which it

is stated: “Now in the case of Clissold vs Cratchley [(1912) (2)

K.B.D., p. 244] it was held that upon payment of judgmentdebt to a party authorised to receive it the judgment is ipso facto

at an end and the subsequent issue of a writ and levy of execu-

tion was held to be an actionable trespass without proof of

malice.” In the instant case the Messenger was the person

authorised to receive the judgment debt, i.e. the cattle, and the

Headman held them as his agent. Immediately the Messengertook possesson the cattle were held for the benefit of and at the

risk of the judgment creditor, i.e. present Defendant. In this

regard it is interesting to note that the money for the skins of

the three cattle which died was paid to Defendant. The Plaintiff

is therefore entitled to the return of the cattle seized over andabove the requirements of the writ and the appeal is dismissed

with costs.

Adendorff and Botha, Members, concurred.

For Appellant: Mr K. Muggleston.

For Respondent: Mr A. T. Berrange.

43


MAPHOTHOZA MLENGANA vs BHUBHANI DALIBANGO


UMTATA: 16 June 1970. Before Yates, President and MessrsAdendorff and Toni, Members.

ACTION FOR DEFAMATION-PRIVILEGEDOCCASION

Summary: At a public meeting held at the Headman’s(Defendant’s) kraal to discuss stock thefts and methods of

preventing them Plaintiff was accused of being a stock thief.

Held: As the meeting was a public one and Defendant was in a

position of authority and responsible for ensuring law andorder in his location it was a privileged occasion and nospeaker would incur liability for contumelia unless animusinjuriandi was proved.


Yates (President) delivering the judgment of the Court.

Due cause having been shown an application for condonationof the late noting of the appeal was granted.

This is an appeal against a judgment of absolution from theinstance with costs at the close of Plaintiffs case in an actionin which Plaintiff (now Appellant) sued Defendant (now Res-pondent) for an amount of R360. His particulars of claim wereas follows:

“Against Defendant for payment of R360 being in respect of

—

(a) value of the houses, R100;

(b) fencing, R60;

(c) I had to run away with my family in view of the attitude

of the Defendants and in consequence my dignity wasimpaired, in the result I suffered damages in the extent ofR2C0.

Wherefore Plaintiff prays for judgment against the Defendantsjointly and severally the one paying the others to be absolved.”

The summons, as was conceded by Mr Koyana, did not disclosea cause of action. No reason is given for claiming R100 forhouses or R60 for fencing and the Court is left completely in the

44

dark in regard to the basis of these claims. The third claim is

not one for damages for defamation nor is any indication givenof how Plaintiff’s dignity was impaired, or what Defendant’s“attitude” was. Finally there is only one Defendant cited so that

the “joint and several” claim has no application.

However, Defendant did not except to the summons and his

plea is as follows:

“1. He denies being liable to Plaintiff in the R360 claimedor in any other amount and puts Plaintiff to the proof thereof.

2. Ad paras A & B, he denies causing any damage to Plaintiff’s

house and fencing and puts Plaintiff to the proof thereof.

3. Ad para (C) he denies causing Plaintiff to run away withhis family and puts him to the proof thereof.

He accordingly denies that Plaintiff has suffered any damageswhatsoever and puts Plaintiff to the proof thereof.”

The Court and the attorneys appear to have accepted that

Claims A and B were for damage to Plaintiff’s property resulting

from his enforced departure and that Claim C was for contumeliain that he was accused of being a stock thief.

An appeal has been brought against the judgment on thegrounds: “1. That none of the parties concerned in this matterhad a right to evict the Plaintiff in the way they did. (2) That thelearned Bantu Affairs Commissioner erred in holding that thePlaintiff has suffered no damages inasmuch as evidence showsthat he in fact suffered damages. (3) That the judgment is againstthe weight of evidence and probabilities of the case and is notsupported thereby.”

Plaintiff alone gave evidence to the effect that at a meeting ofthe residents of the location of which Defendant was the headmanit was stated that he was a stock thief and Defendant, amongstothers, suggested that he should be compelled to leave the area.

The matter was subsequently taken to the Tribal Authoritywhere he was ordered to leave within three days. He took his

personal belongings and the doors of his huts but left every-

thing else behind and did not go back to retrieve anything as

he was afraid that he would be killed.

He gave evidence as to the value of his huts and fencing left

behind but his evidence in regard to damage thereto was hearsayand no damage was proved.

If it is accepted that the third claim was one for defamationthen obviously the defence must be that the words were uttered

on a privileged occasion. As this was a public meeting presumablycalled to discuss the question of stock thefts and means for

preventing them and where the Defendant was in a position of

authority and responsible for ensuring the maintenance of lawand order in his location then there can be no doubt that this

was a privileged occasion (see Maasdorp, Vol. IV, Seventh Ed. at

pages 111/113) and that therefore speakers would incur noliability unless animus injuriandi i.e. malice is proved which is

not the case here. See cases cited in Warners’ Digest of S.A. NativeCivil Case Law at paragraphs 2325/6.

The appeal therefore is dismissed with costs.

Adendorff and Toni, Members, concurred.

For Appellant: Mr D. Koyana.

For Respondent: Mr P. Rose.

45


SINYUDU MAKINZI, duly assisted by NOKWEDININKUMBI vs SABAWU MTEZA


UMTATA: 17 June 1970. Before Yates, President and MessrsAdendorf and Jordaan, Members.

RESCISSION OF JUDGMENT-WHOSHOULD APPLY

Summary: Plaintiff had obtained a default judgment. An applica-

tion was made for its rescission by a relative of Defendants.Plaintiff contended that not the Applicant but another relative

was the correct person to represent the Defendant. This con-tention was upheld and a subsequent application by the personso designated was made for the rescission of the judgment.This, however, was refused on the ground that the matterwas res judicata.

Held: That res judicata did not apply.

Held further: In the absence of wilful default and as a bonafide defence was disclosed by the affidavits the rescission ofthe default judgment should be granted.



:

In this case Plaintiff (now Respondent) sued Defendant, whomhe alleged was a minor and dowry eater of Novangile, dulyassisted by his uncle and guardian Nokwedini Nkumbi, for the

return of his wife or seven head of cattle or their value of R30each. He averred that he had paid dowry of 10 head of cattle

and a horse and that Novangile had deserted him seven yearspreviously and although “putumaed” on several occasions shehad refused to return to him. Three children were born of themarriage and a wedding outfit supplied so that failing the returnof his wife he claimed seven head of cattle. No appearance todefend was entered and on 4 September 1969, a default judgmentwas granted.

46

One Malayilayi Mgwaxulana on 19 September 1969, appliedon behalf of the Defendant for the rescission of the judgment andstated in his accompanying affidavit that he was Defendant’suncle and the “eye” of his kraal in the absence of NokwediniNkumbi who had left for the mines in May of that year.

He stated further that on receipt of the summons he hadconsulted Plaintiff’s attorney and that Plaintiff’s wife was sub-sequently returned to him (Plaintiff) and he considered that thematter was then closed. It was not until Defendant’s cattle wereattached that he learned of the default judgment. He alsoaverred that Defendant had a good and bona fide defence toPlaintiff’s claim in that even if Novangile had deserted Plaintiff,

five head of cattle only has been paid as dowry and four childrenwere born of the union so that in the event of a dissolution ofthe customary union only one beast was repayable.

Plaintiff in his replying affidavit confirmed that he had fetchedhis wife but alleged that she had only stayed at his kraal for onenight before deserting again.

Plaintiff also denied that Malayilayi was entitled to act forDefendant Sinyudu and stated that the person who was entitled

to act was one Sixaku.

On 13 October 1969, this application for rescission of the

judgment was refused with no order as to costs. Sixaku Zwilibi

then applied on behalf of the defendant for a rescission of the

judgment alleging in his accompanying affidavit that he was the

paternal uncle of defendant and nearest male relative in theabsence of Nokwedini. No replying affidavit was filed and this

claim wa.s not refuted.

This application was dismissed on 21 November 1969, againwith no order as to costs (although in his written reasons for

judgment the Commissioner stated that costs were awarded).

An appeal has now been brought on the grounds that

:

“(1) The Presiding Officer erred in accepting that the matterwas Res Judicata in view of the fact that the application on13 October 1969, was dismissed solely on the ground that

Malayilayi Mgwaxulana had no locus standi and not on the

merits;

(2) the allegations of Sixaku Zwilibi regarding the merits of

the application stand uncontradicted and the Presiding Officer

should therefore have allowed the application.”

There is nothing on the record to indicate for what reasonthe first application was refused but in view of Plaintiff’s allega-

tions in his affidavit that Sixaku and not Malayilayi was the

correct person to represent the defendant, that this was notrefuted and that in fact Sixaku did then apply for the rescission

it is probable that it was refused because the court was satisfied

that Malayilayi had no locus standi, and that the merits of the

application were not considered. If he had no locus standi then

of course his application was a nullity and the way was left

open for a proper application to be made.

47

As pointed out at page 88 of “Native Law in S.A." by Seymour,3rd. Ed. “ ... in the event of the inability of the absent kraal-

head to give instructions, it is competent for his nearest malemajor relative in the district to conduct or give instructions for

the conducting of the defence.”

Sixaku was thus entitled to take the necessary steps.

The Assistant Bantu Affairs Commissioner came to the con-clusion that because the first application was refused then res

judicata applied and had the matter been decided on its meritsthere might have been some force in his contention for, as pointedout by Mr Koyana, it is only when a final judgment has beengiven that res judicata applies. See S.A. Law of Evidence byHoffmann at page 392. Plaintiff cannot have it both ways. Hecannot first contend that Malayilayi was the wrong person to sueand then when the correct person institutes proceedings turn roundand contend that the matter had already been decided.

This view finds support in the comments at page 682 in

Jones and Duckle, 6th Ed. to Rule 46 (9) (which is the sameas Rule 77 (7) of the Rules for Bantu Affairs Commissioners’Courts) i.e.

“‘If such application is dismissed’. These words are

equivalent to ‘if such application is finally disposed of on its

merits'; they do not apply to dismissal on account of short

service, non-appearance, defects in procedure, etc. In the latter

cases the application should merely be struck off the roll.”

It is quite clear that in the absence of Defendant’s guardianhis other male major relatives have all along been desirous of

defending the action and there can be no question of being in

wilful default. Furthermore the affidavits accompanying the

application set out a bona fide defence and an acceptable explana-tion for defendant’s failure to enter an appearance to defend andfile a plea.

The appeal is allowed with costs. The judgment of the BantuAffairs Commissioner’s Court is set aside and for it is substituted

:

“Application for rescission of the default judgment which wasgranted on 4 September 1969 is allowed with costs.”

Adendorff and Jordaan, Members, concurred.

For Appellant: Mr D. Koyana.

For Respondent; Mr P. Rose.

48


DHLAMINI vs DHLAMINI


PIETERMARITZBURG: 6 July 1970. Before Craig, ActingPresident, Neuper and Warner, Members.

APPEAL AND REVIEW

PROCEDURE

Appeal—Application for review—condonation.

Summary: Defendant sought to bring a matter on appeal andreview on the same grounds and to apply for condonation oflate noting of both all by means of one document.

Held: That appeal, review and application for condonation are

separate facets of the approach to the Appeal Court and mustbe tendered by means of separate and distinct documents.

Held: That grounds of appeal and for review must, of necessity,

differ.

Cases referred to:

Mbende vs Nkengwana, 1930, N.A.C. (C. & O.) 22.

Nzimande vs Funeka. 1938, N.A.C. (N. & T.) 82.

Matonsela vs Matonsela , 1952, N.A.C. 257 (C).

Mbanjwa vs Tshezi, 1933. N.A.C. (N. & T.) 17.

Tynyiswa vs Dinyana, 1945, N.A.C. (C. & O.), 85.

Works referred to:

A Digest of S.A. Native Civil Case Law by Warner.

Rules referred to:

Bantu Appeal Court Rules 7, 22.

Proceedings from the Court of the Bantu Affairs Commissioner,Paulpietersburg.

Craig. Acting President, deliverng the judgment of the Court

:

The Court questioned the acceptability of the procedureadopted by Defendant’s attorney to bring this matter before this

Court. It consisted of a document, to which was attached anaffidavit, and which purported to to be (1) an application for

condonation, (2) a notice of appeal and (3) an application forreview of the proceedings in question, all lumped in one. Thedocument reads as follows

:

49

"Sirs, Please take notice that an application on behalf of theabove-named Defendant will be made to the Bantu AppealCourt (North-Eastern Division) on a date, time and place to befixed by the Registrar of the said Court for: (a) An Order ofCourt, condoning the late filing of an application to review theproceedings in the above case; and (b) an Order condoning thelate noting of the appeal against the judgment granted in theabove Court in the above case on 24 February 1969.

Take further notice that the Defendant’s affidavit, and a copyof the Chief’s written record, duly certified by the Clerk of theabove Court, and which will be used in support of the applicationare herewith annexed.

Upon the application being granted, the appeal and review willbe prosecuted forthwith on the following grounds

:

(1)

According to the certified copy of the Chief’s written recordannexed hereto, the judgment of the Chief was granted againsta woman Santjie Dhlamini, and not against Defendant. It is

therefore irregular for the name of Santjie to be omitted andsubstituted by the name of the Defendant, when the case camefor hearing on appeal before the above Court.

(2)

The judgment of the Chief was granted on 27 April 1968 andthe time for noting the appeal against the judgment had thereforeexpired when the notice of Appeal was issued on 12 November1968, and in the absence of an application to condone the late

noting of the appeal, having been made and granted, it was notcompetent for the Court to entertain the Appeal and considerthe merits of the case.”

(3)

In any event the Court erred in giving judgment beforeDefendant closed his case.”

Each of these items is a separate facet of the approach to this

Court and each is governed by a different rule or rules. Eachfacet must be presented by a separate document or documents

—

Mbende vs Nkengwana, 1930, N.A.C. (C. & O.) 22 Warner's“Digest” para. 414).

What purports to be a notice of appeal is no more than astatement of intention to prosecute an appeal on certain speci-

fied grounds. It contains no formal noting of an appeal against

the whole or part of the judgment—see Bantu Appeal CourtRule 7 which is peremptory.

Applications for review are governed hy Bantu Appeal CourtRule 22. A review must, inter alia, be addressed to the judicial

officer concerned and not to the Clerk of Court. [Nzimande vs

Funeka, 1938, N.A.C. (N. & T.) 82 (Warner 4341.)]

The grounds for appeal and for review must of necessity differ

—

Matonsela vs Matonsela, 1952 N.A.C. 257(C) and Mbanja vs

Tshezi, 1933, N.A.C. (N. & T.) 17 (see Warner’s “Digest” paras4342 and 4339, respectively). The document complained of gaveone set of grounds and sought to leave it to this Court to decidewhich supported an appeal and which a review. It was for theattorney concerned to decide on which grounds he proposed to

appeal and on which he proposed to apply for review.

50

The Court ruled that no appeal was properly before it andrejected that portion of the notice.

Wit much reluctance the Court decided to consider the questionof reviewing the proceedings before it because of what the recordrevealed.

In the first place the applicant's attorney has misdirected him-self. The first two grounds for review are directed at the casebetween Elfas Dhlamini (Plaintiff) and Santshi Dhlamini (JothamDhlamini) vide the Chiefs written Record A/353750 handed in

by applicant himself when he applied for review. That case wasnot, however, the subject of appeal in the Court a quo so it

appears to be irrelevant. The matter which was in issue was the

judgment of the Chief's Court in the case of Elfas Dhlamini(present Plaintiff/ Respondent) and Jotham Dhlamini (present

Applicant) who was, vide his own evidence, the Defendant in

both Courts below. At this stage I pause to point out to the

Bantu Affairs Commissioner that the original Chief’s WrittenRecord in this latter case should have been filed of record withthe Notice of Hearing of Appeal—Form B.A. 503 and his Clerkof Court should be instructed accordingly.

The first and second grounds for review were inapt and wererejected.

The third ground of review was then considered. The BantuAffairs Commissioner erred in not indicating clearly that Defen-dant had closed his case and the omission should in the future

be guarded against. There is nothing on record however, to

indicate that the Applicant (Defendant) had further evidence to

tender or that he desired to address the Court [see Tynyiswa vs

Dinyana, 1945, N.A.C. (C. & O.) 85 (Warner’s “A Digest of S.A.

Native Civil Case Law” para. 4245)] so whether or not there wasan irregularity within the ambit of Bantu Appeal Court Rule 22is not known.

Mr Menge argued that it was irregular for the Chief to havetried the instant case as paragraphs 8 and 9 of his reasons for

judgment appear to indicate that he was or should have been a

witness in the case and was not unbiased. This point, however,was not raised in the Court below, as it should have been, norwas it specifically raised in the application for review in this

Court.

In the result the application for review was refused, with costs.


For Appellant : Adv. W. O. H. Menge.

For Respondent: Adv. D. P. Kent.

51

IN THE CENTRAL BANTU APPEAL COURT

HLABATHI vs NKOSI

CASE 18 OF 1970

JOHANNESBURG: 29 October 1970. Before Potgieter, Presi-

dent; and Thorpe & Bowen, Members.

MAINTENANCE

Enquiry under Maintenance Act, 1963.

—

Absence of maintenanceofficer during hearing—Maintenance of illegitimate child—Meansof mother—Representation of parties and functions of presiding

officer and maintenance officer discussed

Summary: Complainant alleged that the Respondent was the

father of her five illegitimate children. The Respondentadmitted paternity of the eldest child but denied that hewas the father of the other four. Though it appeared that

a maintenance officer had duly instituted the enquiry, hewas not present during the proceedings in Court. After

hearing the evidence of the Complainant and the Respon-dent, and their witnesses, the presiding officer declared

that the Respondent was the father of all five children

and made an order that he should maintain them at the

rate of R7 per month. There was no evidence as to the

Complainant’s means.

Held: There was insufficient evidence to support the affilia-

tion order in so far as it related to the four youngerchildren.

Held, further: No Maintenance Order could be made in the

absence of evidence of the Complainant’s means.

Held, further: (Potgieter, President; and Bowen, PermanentMember): The absence of a maintenance officer during the

hearing constituted a fatal irregularity, and this alone neces-

sitates the setting aside of the proceedings.

Cases referred to:

S. vs Swart 1965 (3) S.A. 454.

Pieterse vs Pieterse 1965 (4) S.A. 344.

Moodley vs Gramani 1967 (1) S.A. 118.

Buch vs Buch 1967 (3) S.A. 83.

Central Bantu Appeal Court—Unreported

Mlotja vs Mpela Roll 10/66.

Magahane vs Magabane Roll 4/68.

Buthelezi vs Zulu Roll 22/69.

Appeal from the Maintenance Court of the Bantu Affairs

Commissioner, Germiston.

61046—2

52


As the Respondent in the present appeal proceedings (herein-

after referred to as the Complainant) was apparently not aufait with an official language and as Mr Roth, Counsel for theAppellant (hereinafter referred to as the Defendant), addressedus in English, I shall use that language in this judgment.

This is an appeal by the Defendant against the finding by the

Bantu Affairs Commissioner, Germiston, in proceedings underthe Maintenance Act of 1963, Act 23 of 1963 (hereinafter refer-

red to as the Act), that the Defendant is the father of five

children born to the Complainant, despite his denial of paternity

of all but the first child, and against an order that he paymaintenance in respect of the five children.

The ground of appeal are

—

“1. the Commissioner erred in finding that the Respon-dent was the father of the Applicant’s children, Hendry,Limon, Elizabeth and Lydia;

2. the Commissioner erred in finding that the Respondentshould pay the sum of R7 per month as and by way of

maintenance;

3. (a) the parties being unrepresented, the Commissionerfailed to make full use of his powers in terms of Act 23 of

1963,to—

(i) ascertain the full extent of the Respondent’s expenditure;

(ii) ascertain the earning capacity and or other income of

the Respondent;

(iii) ascertain the needs of the children;

(iv) fully cross-examine all witnesses as to the paternity of

the four children referred to above;

(b) the Commissioner erred in finding that the Applicant

had discharged the onus on the balance of probabilities of pro-

ving that the Respondent was the father of the four children

referred to above;

(c) the Commissioner errred in presiding over the enquiry

in the absence of and without the due fulfilment of the

duties of a maintenance officer within the meaning of the

Act aforesaid;

(d) the Commissioner erred in not taking into account suffi-

ciently, or at all, the joint responsibility of support of the

children by the Applicant as well as the Respondent;

(e) the Commissioner erred in ordering the Respondent to

pay the sum of R7 per month as and by way of maintenance

for the five children.”

Proceedings were initiated in the court a quo by means of a

sworn statement by the Complainant that the five children in

question were her children and that the Defendant was their

father; that since the birth of these children the said Defendanthad not provided for their maintenance; that she had asked the

Defendant to contribute towards the maintenance of the said

children but that he has neglected to do so. This affidavit was

53

sworn to before a certain “A. Spies” who signed as Clerk of

the Court, Bantu Affairs Commissioner, Germiston. The formused for this affidavit is a printed form J.495 which is headed:Complaint under section 18 (2) of Act 33 of 1960, Act 7 of 1895

(C.), Act 10 of 1896 (N.), Ordinance 44 of 1903 (T.) or Ordi-nance 51 of 1903 (O.F.S.). None of these enactments have anybearing on an enquiry under the Maintenance Act, 1963; in

fact all except the first have been repealed. It would seemdesirable that a form more suitably headed should be used andthat any reference to civil or criminal proceedings should beomitted. Perhaps the Complainant could be required to state

whether the Defendant admits or denies paternity of the children

in question, as this would be of assistance to the maintenanceofficer in deciding what witnesses should be called.

There is also a summons requiring the Defendant to appearbefore the Bantu Affairs Commissioner’s Maintenance Court,Germiston. This was on a roneod form requiring him to give

evidence and to show cause (if any) why an order under the

provisions of the Act should not be made against him to main-tain or contribute towards the maintenance of five minor children

to wit: Elsie, Henry, Limon, Elizabeth and Lydia. The formalso contains an order that the Defendant should produce at the

trial a statement signed by his employer giving full particulars

of all his earnings. The summons was signed by the same personbefore whom the complaint had been sworn namely A. Spies,

but on this occasion in his capacity as Maintenance Officer.

Germiston.

Mr. Roth conceded that if A. Spies was the maintenance officer

then the minimum requirements of section 4 (1) of the Actfor the institution of a maintenance enquiry had been compliedwith. It is noted that in his reasons the Commissioner stated that

the complaint was handed in by the maintenance officer.

A large proportion of appeals heard in this Court are fromorders made by maintenance courts. It would seem that therequirements of the Act and the functions of a maintenanceofficer are not properly understood. Buck vs Buch 1967 (3)

S.A. 83 clarifies the position. That case deals with an applicationto vary a maintenance order but the same principles would beapplicable to an enquiry before a maintenance court instituted

with a view to an original order. At pages 86 and 87 appearsthe following:

“Under the Maintenance Act, No. 23 of 1963, an enquiryinto maintenance is no longer a matter left to the parties whocan submit such evidence as they deem fit . . .

In my opinion the Act has introduced new concepts. It is

no longer a party who is dominus litis and who launches the

action or application.

It seems that any interested person including of course a formerhusband or wife, may lay a complaint with a maintenance officer

concerning the failure to pay maintenance for another personor himself or herself. Such a maintenance officer having investi-

gated the complaint may then institute an enquiry in a main-tenance court.

54

Where a Maintenance Order is in existence the person layingthe complaint must show to the maintenance officer that suffi-

cient cause exists for the substitution or discharge of the Main-tenance Order. He then investigates the complaint and may theninstitute an enquiry. It seems therefore that if the maintenanceofficer is not satisfied that sufficient cause exists he need notinstitute the enquiry.

If he decides on an enquiry he is then entitled and I thinkis in duty bound to lay all the relevant evidence obtainablebefore the Court. He may summon persons and cause books,documents and statements to be laid before the Court.

It follows that, if the parties are legally represented, his task

is considerably lightened, but it does not follow that he is

functus officio. If the parties do not produce existing relevant

evidence, he is entitled to do so and where necessary shouldprobably do so. He would also be guided by the presiding

officer, because the Rules promulgated under section 15 of the

Act as printed in the Gazette, dated 22 January 1966, providein Rule 8:

"The Court may at any stage of the enquiry summon orcause to be summoned any person as a witness or examine anyperson in attendance, though not summoned as a witness, andmay recall and re-examine any person already examined.”

In view of these provisions it seems to me no longer correct

to speak of an onus resting on a party in connection with pro-

ceedings before a maintenance court.”

The last paragraph of the above excerpt lays down no morethan that there is no onus on a party to show cause why anorder should be made or varied, but this dictum would not

affect considerations which the Court after a full enquiry wouldhave to take into account when deciding whether, for example,paternity is proved.

It is to be noted that is is the duty of the maintenance officer

to call where necessary any witness who may advance the enquirywhether favourable to the complainant or defendant. Buckmakes it clear that the maintenance officer does not represent

either party and it was for this reason that in Magabane vs

Magabcme heard in the Central Bantu Appeal Court, Roll 4 of

1968 (unreported), it was held that a maintenance officer cannot

agree, on behalf of a complainant, to a variation of a main-tenance order. It would appear that the maintenance officer

must inter alia assist the presiding officer in the examination

and cross-examination of witnesses, whether for the complainant

or the defendant.

The investigation leading to the decision whether or not to

institute an enquiry need not be exhaustive. Presumably whereparagraph (a) of section 4 (1) is applicable the maintenance officer

need merely satisfy himself from the sworn complaint that the

Respondent is prima facie legally liable to maintain and is either

not doing so at all or at least not to the extent that could be

55

expected. Section 4 does not empower a maintenance officer to

cause any person to be summoned to appear before he has

instituted an enquiry, so a maintenance officer apparently cannotcompel a respondent or any one else to appear before him to

enable him to investigate a complaint.

The interests of justice require that a sufficiently full enquiryshould be held and generally this end would be easier of attain-

ment if a maintenance officer could be present throughout the

hearing in Court so that he could do the bulk of the questioningin so far as this task is not performed by a legal representative.

On the subject of legal representation, it is not clear whether aComplainant who is herself legally liable to maintain the child in

question is entitled to bring her own legal representative to the

enquiry for the purpose of assisting her by leading her evidence,

by cross-examining the Defendant and his witnesses and byaddressing the Court. Section 5 (2) of the Act provides that

“any person against whom an order may be made under this

section may be represented by counsel or an attorney,” butwould it be competent for a maintenance court to make an order

against a Complainant where she happens also to be legally

liable to contribute towards the maintenance of the child in ques-

tion? One view could be that an enquiry is limited to deciding

whether an order should be made against the Respondent in

the enquiry proceedings. For present purposes it is not necessary

to decide this question. In any event, if the interpretation of the

Act in Buch is correct, it would seem, as already indicated, that

a maintenance officer has the right and possibly at times the

duty to question or cross-question any witness for either party,

including the parties themselves. Especially where there is nolegal representative the examination and cross-examination of

witnesses by the maintenance officer would lighten the task of

the presiding officer who is thus spared the necessity at times

of himself descending into the arena, thereby possibly “havinghis view clouded by the dust of conflict.” The presiding officer’s

right to ask questions would not be affected, but the less the

need therefor the easier his task of giving a balanced judgment.It seems desirable that a complainant who is not legally repre-

sented and who seeks maintenance for herself (or himself) or for

a person she (or he) is legally liable to maintain should beafforded the opportunity further to cross-question a Respondentand h :

s witnesses, even though a maintenance officer may haveundertaken this task, for the reason already mentioned, namely,that a maintenance officer does not represent a complainant.

There is nothing in the record to indicate that the maintenanceofficer took part in any way in the proceedings after handing in

the complaint, and it must be accepted that that is the position.

That the presiding officer and the maintenance officer are twodistinct persons is clear from a reference to section 3 of the Act,

which deals with the appointment of a maintenance officer, andsection 5 (5), which refers to a request which the maintenanceofficer may make to the Court. Mr Roth’s submission was that

Buch makes it clear that a maintenance officer has certain duties

to perform in court during the hearing and that the fact of his

absence is a fatal irregularity. Claassen, J., in Buch seemed to

assume that a maintenance officer would be present through-out the hearing, but he did not consider the situation that would

56

arise if he was not and I thinktwe should hesitate to decide

that the mere absence of a maintenance officer vitiates theproceedings, especially as we did not have the benefit of bilate-

ral argument. It is possible to conceive of an enquiry conductedso thoroughly by a presiding officer without a maintenanceofficer being in court that the Respondent in such an enquirysuffered no prejudice. In those circumstances the absence ofthe maintenance officer may, possibly, not affect the validity

of the proceedings. On the other hand it is possible that theabsence of a maintenance officer during a hearing signifies that

no enquiry has been held in terms of the Act. However, it is

not necessary to decide this point, because there is anotherground on which the present proceedings must be set aside,

namely that material aspects of the case were not enquired into

at the hearing, and the Appellant may well have been prejudicedthereby. This ground must now be dealt with in some detail,

although it will not be necessary to do so exhaustively. I shall

quote the evidence obtained from each witness in turn andcomment thereon before proceeding to the next witness.

The Complainant gave the following evidence:

“Ek is ’n Bantoevrou en is 28 jaar oud en woon Nkakistraat1548. Tokoza, Alberton. Ek het die Verweerder gedurende 1955

ontmoet. Ek het met Verweerder vir eerste keer gemeenskapgehad gedurende 1956. Dit was Februarie 1956. Daarna het onsgereeld gemeenskap gehad. Gedurende Februarie 1956 het ekswanger geraak. Gedurende Oktober 1956 het ek geboorte gegeeaan 'n dogter Elsa. Verweerder het R36 seduksie gelde aan mypa betaal. Verweerder het nie die kind onderhou nic alhoewelek horn gevra het. Ek is toe na Volksrust waar ek toe gewoonhet. Verweerder het ook in Volksrust gewoon. Verweerder het

aanhou om vir my te kuier. Ons het gereeld gemeenskap gehad.

Ek het weer gedurende Maart 1958 swanger geraak en op 25

Desember 1958 is ’n seun Hendry gebore. Verweerder het nie

onderhoud betaal. Na die geboorte van Hendry het Verweerdersteeds by my besoek afgele en met my gemeenskap gehad.

Gedurende Julie 1959 het ek weer swanger geraak en op 17

Maart 1960 geboorte gegee aan Limon ’n seun. Gedurende 1961

het ek en Verweerder saam na die Rand gekom. Ons het by-

mekaar gebly en gedurende Augustus 1962 het ek wccreens

swanger geraak en op 30 April 1963 is Elizabeth gebore. Eken Verweerder het met ons verhouding aangegaan en gemeen-skap gehad Gedurende Februarie 1967 was ek weer swangeren na geboorte is die kind oorlede. Gedurende Februarie 1968

het ek weer swanger geraak. Ek het toe nog by Verweerder gewoon.Op 23 November 1968 het ek geboorte gegee aan Lydia. Nadie geboorte is ek terug na Volksrust. Nadat ek teruggekeer het,

het ek in Tokoza gaan woon by my suster. Verweerder het nogaf en toe vir my kom kuier. Ek het Verweerder vir onderhoudvir die kinders gevra maar hy het nie gegee nie.

XX. Verweerder: Geen.

XX. Hof: Gedurende 1964 tot 1966 het ek en Verweerder saam-gewoon en gereeld gemeenskap gehad, maar ek het nie swangergeraak nie. Ek was daardie tyd sieklik.”

57

It is desirable that the issues should be made clear as early as

possible in the proceedings. So far there was nothing in therecord to indicate that the Court was aware of what the issues

were. The Defendant had not as yet indicated whether he ad-mitted paternity. It is realised that Bantu Affairs Commissionershave to contend with multitudinous duties and lack of staff and it

may be of assistance to indicate how an enquiry under theMaintenance Act could be conducted. The suggestions that I

make now are not to be regarded as hard and fast rules. It

would seem that the Complainant could have been asked first

to state under oath the names and dates of birth of the childrenin question and at that stage the Defendant could have beenasked whether he admitted paternity of all or any of thesechildren. Then in respect of the children of whom he did notadmit paternity more detailed evidence could have been elicited.

Obviously the fact that the Defendant asked no questions didnot indicate that he was admitting any particular allegation ofthe Complainant. It is clear that neither he nor the Complainantunderstood that their failure to ask questions could be construedas meaning that they did not dispute the evidence that had beengiven. Thus, when the Defendant gave evidence he denied pater-

nity of the last four children and although he did this theComplainant asked no questions in cross-examination. If after

the Complainant had given the names and ages of the childrenthe Defendant had been asked whether he admitted paternity of

these children it would have transpired that he denied paternity

of the last four.

One commendable method of eliciting evidence from an unre-presented litigant at an enquiry is first to obtain, by having the

witness questioned by the maintenance officer, with supplemen-tary questions by the Court, as full and as accurate a picture

as possible on all material aspects, including aspects on whichcorroborative evidence from another witness should be available

at a later stage. After that and before turning the litigant overfor cross-examination the litigant should be asked whether hewishes to add anything further.

Where an unrepresented litigant says that he has no questionsto ask in cross-examination, and the witness has given relevantevidence against him, it is advisable, especially at an enquiry, to

ask the litigant whether this means that he admits the evidenceof the witness to be correct in all material particulars. If he

answers, as he usually does, that this is not so, then all material

parts of the evidence of that witness should be put to him for

his admission or denial, point by point. Any denial should beput to the witness to ascertain whether the witness wishes to

modify his or her evidence. A litigant in an enquiry should beencouraged to ask relevant questions.

In the present enquiry it was the duty of the presiding officer

to see that more details were obtained from the complainantso that her evidence could be tested. For example, the Complai-nant could have been asked inter alia the following questions:

Has Defendant ever admitted paternity, if so to whom?

When? Where?

—

Were you present?

58

Was anyone else present?

Have you birth certificates or baptismal certificates?

Was the child full-term?

When did you first miss your periods?

How long before that did you last have intercourse with theDefendant?

Where was this?

Did anybody see the Defendant in the vicinity on that occa-sion?

Could you bring that person to Court? Or would a subpoenabe required?

How often did he visit you?

Was the pregnancy reported to the Defendant?

By whom?At what place?

When?

If it was reported, what did he say?

Have you any letters from the Defendant?

Please produce them with the envelopes, if possible.

The evidence of the complainant contains not much detail

which could be corroborated. Some of her evidence is not clear

e.g. she does not say where the first child was born, nor whenshe went to Volksrust or at what address she stayed. She saysthat Defendant stayed in Volksrust, but she does not say where.She does say that he continued to visit her, but she does notsay where. She does not say that anyone saw them together.

She says she and the Defendant came to the Rand together andthat they stayed together and she gives the impression that she andthe Defendant continued to stay together until after the birth of

the child Lydia on 23 November 1968, but she does not give the

address or addresses of the place or places at which they stayed.

She does not say that anybody saw them living together. TheComplainant mentioned her sister but did not give her nameand consequently it is not clear whether Alesina or some other

sister was referred to. Where a litigant or other witness men-tions someone who may be able to give material evidence or

who may be referred to by a subsequent witness (or who hasperhaps already been mentioned by a previous witness), but does

not give the name of that person, as often happens, then the

witness should immediately be asked for that person’s name,for the purpose of identification.

The next witness was Jeremiah Nkosi who testified as follows:

“Ek is Bantoeman en is ongeveer 70 jaar oud. Ek ken die

Klaagster sy is my dogter. Verweerder het aan my seduksie

geld betaal vir my dogter die Klaagster. Verweerder het R36aan seduksie betaal. Verweerder moes toe lobolo betaal maar hyhet nie. Terwyi Verweerder en Klaagster in Volksrust gewoonhet, het Klaagster geboorte gegee aan drie kinders nl. Elsie,

Hendry en Limon.

59

XX. Verweerder: Geen.”

It would appear that Jeremiah Nkosi wished to convey that

the Defendant and Complainant stayed together at Volksrustthough he does not say so expressly. If he intended to conveythis then it would appear to be contrary to the evidence of theComplainant who has said that while at Volksrust the Defendantvisited her. Jeremiah Nkosi does not say that the three childrenmentioned by him had been fathered by the Defendant. Hereagain the Commissioner or maintenance officer should haveclarified these points.

As mentioned in the headnote of Pieterse vs Pieterse 1965j

(4) S.A. 344, “it is not sufficient for the presiding officer to take|

up the normal passive attitude of a judicial officer presiding .

at a trial. He may have to cross-examine.” *

The next witness was the Defendant and his evidence readsas follows:

“Ek is Bantoeman en is ongeveer 30 jaar oud. Ek ken die

Klaagster. Sy was my minnares. Ek het met Klaagster gemeen-skap gehad en ’n kind was gebore. Ek het seduksie aan haarpa betaal teen R36. Nadat hierdie kind drie maande oud washet ek nooit weer by die Klaagster gebly nie. Ek is gedurende1960 met ’n ander vrou getroud en het nie ’n verhouding metKlaagster gehad nie.

XX. Klaagster: Geen.

XX. Hof: Nadat ek van Volksrust weg is het ek in Denvergaan woon. Ek het in die hostel gewoon. Ek weet nie waardie Klaagster gewoon het nie, want ek het haar nie weer gesien

nie. Elsie is my kind. Ek het die kind onderhou. Ek verdien

R40 per maand. Ek betaal R2,10c huishuur. Ek betaal onge-veer R12 per maand aan kos. Ek het geen ander uitgawes nie.”

As pointed out previously, little turns on the fact that the

Complainant asked no questions. The Defendant should havebeen more thoroughly examined by the maintenance officer or

by the Court than he was. The Complainant’s version conflicted

with that of the Defendant in so far as he said that he stayed

in a hostel and he should have been asked whether he hadany corroborative evidence to show that he did stay in a hostel;

if so, that evidence should have been produced. He could havebeen asked more about this alleged marriage with another womane.g. whether he and this other woman ever stayed together andis so, where? Defendant could have been asked to produce a

marriage certificate, if this was possible. His statement that hestayed at a hostel in Denver is not sufficiently full. During the

period 1960 to 1968 did he never stay anywhere else? Did heever stay with Jane? If so, where and over what period or

periods? With reference to the Defendant’s evidence that “nadathierdie kind drie maande oud was het ek nooit weer by die

Klaagster gebly nie.” he could have been asked whether headmitted having had intercourse with the Complainant duringthose three months. If he admitted this a presumption wouldhave been raised that he was the father of the Complainant’snext child [5. vs Swart 1965 (3) 454] and this could have affected

the course of the trial as to the paternity of that child.

60

The next witness is Jane Hlabathi who stated:

“Ek weet my man het ’n kind by die Klaagster. Terwyl Ver-weerder in Denver gewoon het het ek in Alberton gewoon. Ekweet niks van Verweerder se verhouding met die Klaagsternie.

XX. Klaagster: Geen.”

In the case of this witness clarification could also have beenobtained in view of her statement that she was married to the

Defendant. She could have been asked whether she and theDefendant ever lived together; if so, where and for how long.

The next witness was Alesina Zwane whose evidence reads:

“Ek ken die Klaagster sy is my suster. Verweerder en Klaag-ster was minnaars. Ek weet nie van wanneer af nie. Ek het naDurban gegaan gedurende 1951 toe was hulle al minnaars. Ekhet in 1963 teruggekom toe was hulle nog minnaars. Verweerderen klaagster tesame het vir my kom kuier.

XX. Verweerder: Julie het by my kom kuier.

XX. Hof: Sedert 1964 toe ek van Durban teruggekeer het tot

end 1968 het ek die Verweerder en Klaagster baie in mekaarse geselskap gesien. Hulle het soms by my aan huis gekom.”

It would appear from the cross-examination by the Defendantthat he denied that he had ever visited Alesina. Her evidencewould appear to be incorrect as regards her reference to 1951.

because if the evidence of the Complainant and the Defendantas to their respective ages is accepted then according to Alesinathey were lovers when they were respectively nine and elevenyears old. Possibly she meant 1961. Alesina does not say fromwhat address or place she left when she went to Durban or howshe knew that the Complainant and the Defendant were lovers at

that time. She does not say to what address she came when she

returned from Durban in 1963. She gives no details as to the

dates or addresses at which the visits were made or their

frequency.

The last witness was Belina Msimanga. She testified as follows:

“Ek ken die Klaagster sy is ’n broerskind van my. Klaagster

en Verweerder het ongeveer twee jaar gelede na my huis ge-

kom en vir my kom kuier. Die kind was die dag ook daar.

Verweerder het aan my gese dat die jongste kind van die Klaag-

ster lyk net soos hy. Verweerder het aan my gese dat dit sy

kind is. Ek het die twee nie weer gesien nie.

XX. Verweerder: Jv weet waar ek woon.”

She does not say to what address the Complainant and Defen-dant came when they visited her and there is no explanation

as to why the Defendant should have said that the youngestchild looked just like himself or why he should have said this

was his child. Without further explanation this witness is certainly

suspect. It would seem from her evidence that only one visit

may have taken place namely approximately two years previously.

If that is so it is remarkable that the Defendant should have noapparent reason to say that a particular child was his. It wouldappear that the Defendant denied the incident.

61

On the issue of paternity of the four younger children theenquiry has been inadequate.

In his reasons for judgment the Commissioner expressed the

view that there was an onus on the Defendant to show that hewas not the father of the four younger children. He mentionedS. vs Jeggels 1962 (3) S.A. 704 as authority for this propositionand quoted the following:

“The effect is to create a presumption that the man pointedout as the father by the mother is in fact the father. Onus to

rebut presumption on the man. Can be rebutted only by clear

proof.”

But this presumption is only created, inter alia, when the manhad admitted intercourse. An even more apposite authority onthis point is S. vs Swart supra, in which the Appellate Divisiondecided that the presumption is created when a man admitsintercourse “watter tyd ookal.” However, the significance of this

expression was dealt with by this Court in Buthelezi vs Zulu,Roll 22 of 1969 (still to be reported), in which it was heldthat an admission of intercourse prior to the birth of one child

casts no onus on the man to show that he could not be the

father of a subsequent child. In the present case the Defendantdid not admit having had intercourse with the Complainantafter the birth of the first child, and therefore there was no onuson him to prove that he was not the father of the four youngerchildren. The Court a quo had to come to a decision on the

probabilities, with due regard to the caution which the Court mustexercise in dealing with an allegation by an unmarried womanthat the man she names is the father of her child. Moodley vs

Gramani 1967 (1) S.A. 118 at 120A.

There is the question whether this Court should allow the

order in so far as it relates to the maintenance of the child

Elsa who is admittedly the child of the Defendant. Mr Roth'ssubmission on this point is that it is not competent for a main-tenance court to make an order as to the quantum of main-tenance until it has enquired into various factors, and this wouldappear to be the position. It must be remembered that especially

in regard to illegitimate children the obligation to support is

shared by the mother and the mother’s income must be enquired

into, as a matter of law, before an order can be made, and this

was not done. In Mlotja vs Mpela Roll 10 of 1966 of the

Central Bantu Appeal Court (unreported) the following appears:

“In deciding what amount a father should pay as maintenancefor his child, various factors must be investigated and considered

by the officer conducting the enquiry. Amongst these are the

means of the father, his obligations to others, the needs of the

child having regard to its age and health, the means of the

mother and her ability to fulfil her duty of contributing towards

the child’s maintenance and the normal standard of living of

the parties.”

In the instant case the Defendant did not consent to anyMaintenance Order, but even if he had consented it is debatable

whether an order could have been made without an enquiryinto the factors mentioned above, although it is to be observed

62

that section 5 (7) of the Act provides that a defendant couldconsent, in writing, to a Maintenance Order and that this consent,if produced at the enquiry by the maintenance officer, may bemade an order of Court even in the absence of the Defendant.

The appeal is upheld, with no order as to costs. The case is

remitted to the Court a quo to conduct a new enquiry de novoin terms of the Maintenance Act, 1963, No. 23 of 1963, andbefore a different Presiding Judicial Officer, who must thereafter

deliver a fresh judgment.

I would like to add a few words in clarification of my viewsas to the legal representation of a Complainant who is himselfor herself also legally liable to maintain another person.

Section 5 (2) of the Act reads:

5 (2) Any person against whom an order may be made . . .

may be represented by counsel or an attorney.

It follows that if an order can be made against a Complainanthe or she is entitled to be represented by counsel or anattorney. Proceedings in terms of the provisions of section 4 (1)

(a) or (b) of the Act are instituted for the purpose of “enquiringinto the provision of maintenance in respect of the person con-cerned,” and “an order may be made against any person foundto be legally liable to maintain any other person.” See section

5 (4). The phrase “legally liable to maintain any other person” is

not defined in the Act and must therefore be construed accordingto common law. Thus, a mother and a father are both legally

liable to maintain an illegitimate child, and an order may bemade against either or both of them. If both parents are sum-moned to appear at a maintenance enquiry, perhaps both are

entitled to be legally represented. Perhaps it does not matterwho lodges the complaint. The purpose of an enquiry is general.

It is not to enquire only whether a specific person shouldmaintain, but it is for the purpose of “enquiring into the pro-

vision of maintenance in respect of the person concerned.” Onthe other hand, if a child is staying with its mother and a

maintenance enquiry is instituted on her complaint that the

absent father does not maintain, would a maintenance court

have jurisdiction to make an order not only against the father

but also against the Complainant merely because it finds that

she should also contribute? I think that no order against the

mother would be competent, and that her ability and duty to

help in supporting the child is no more than a factor to beconsidered in fixing the quantum payable by the father. Where,however, the child stays with a grandparent and the mothercomplains that the father is not providing sufficient mainten-ance, the enquiry might disclose that the child is not beingmaintained adequately and that the father is unable to contribute

whereas the mother, who is well able to do so, is not makingany contribution. A Maintenance Order could then perhaps bemade against the mother; if this is so she would be entitled to

legal representation. It may be argued that if the legislature hadintended that a Complainant should be entitled to representa-tion it would have said so. The answer to this could be that

locus standi to lodge a complaint is not limited by the Act to

any particular category of person. It would seem that anyonewho considers, for example, that a child is not being properly

63

maintained may make a complaint in terms of section 4 (1).

The situation could thus arise that the Complainant is a personagainst whom an order cannot be made and this could be the

reason why section 5 (2) is worded as it is, without referring

to a Complainant. However, whether certain categories of Com-plainants are entitled to legal representation is a question whichdoes not arise out of anything in the record of the proceedingsof the Court a quo and has not been mentioned in or duringargument before us, and for this reason I feel that we shouldnot commit ourselves to a ruling thereon.

Bowen, Permanent Member:

I do not feel that it was necessary to comment on the

question of legal Representation of a complainant as it was notan issue in this case . It is however clear from the Act that anyperson against whom an order may be made, may be legally

represented. I am of opinion, therefore, that a Complainant is

entitled to legal representation provided that such person is

legally liable to maintain any other person and provided that

he /she has been summoned to appear before the Court in termsof section four of the Act.

I would moreover go further in regard to the question whetherthe presence of a maintenance officer during the hearing of the

enquiry is essential. This aspect formed one of the grounds ofappeal in the present case and it was also raised in anothermaintenance enquiry appeal which came before us this session.

In the latter case the Bantu Affairs Commissioner ruled that amaintenance enquiry may be held in the absence of the main-tenance officer. This ruling was given by the Commissionernotwithstanding an objection by the Respondent to the holdingof the enquiry in the absence of the maintenance officer.

In the present case Mr Roth on behalf of the Appellant,argued convincingly that the holding of a maintenance enquiryin the absence of a maintenance officer constituted a fatal

irregularity. I am in agreement with his views and followingthe reasoning of the learned Judge in the case of Buck vs

Buck supra , I am of opinion that the absence of the maintenanceofficer at the hearing of a maintenance enquiry can be prejudicial

to either party and constitutes therefore, a fatal irregularity in

the proceedings. On this ground alone, I feel the appeal shouldsucceed.

Subject to these remarks, I concur in the judgment and gener-ally with the reasons expressed therein.

Potgieter: President:

I concur in the judgment of my Brother Thorpe except that

in my view it is implicitly clear from the Act that any party

to a maintenance enquiry, who is legally liable to maintain(including a complainant) is in law entitled to be legally repre-

sented at the enquiry.

I furthermore concur with my Brother Bowen’s opinion that

the absence of a maintenance officer at an enquiry constitutes

a fatal irregularity.

For Appellant: Adv, P. S. Roth i/b J. Carlson, Johannesburg.

For Respondent: In person.

64

IN THE CENTRAL BANTU APPEAL COURT

NGCOBO vs. MAKHUBELA

CASE 19 OF 1970

JOHANNESBURG: 29 October 1970. Before Potgieter, President;

and Thorpe & Bowen, Members.

MAINTENANCE

Enquiry under Maintenance Act, 1963

—

Paternity of child bornduring marriage—Mother’s evidence that child is illegitimate—Operation of maxim pater est quern nuptiae demonstant

Summary: The Respondent alleged that a child to whom she

had given birth while her husband was still alive was not the

latter’s child but was fathered by the appellant. The alleged

adulterer appeared to have made an extra-judicial admissionthat he was the father. The possibility that the husbandhad had intercourse with his wife at about the time she hadconceived had not been excluded. The Commissionernevertheless found the Appellant to be the father and madea Maintenance Order against him.

Held: That the child must be held to be legitimate unlessit could be shown that the husband could not be the father

and that the case should be remitted for further evidence.

Cases referred to:

Fitzgerald vs Green 1911 E.D.L. 432.

Williams vs Williams 1925 T.P.D. 538.

S. vs Swart 1965 (3) 454 (A.D.).

Appeal from the Maintenance Court of the Bantu Affairs

Commissioner, Benoni.


This is an appeal against an order that the Appellant paymaintenance for a child Winnie born to the Complainant on7 September 1967, and especially against the finding implicit

therein that the Appellant is its father.

Before us the Appellant was represented by Adv. Van Schalk-wyk. The Complainant though present was not represented. Wedid not call on Mr Van Schalkwyk to address us, as he stated

that he would be content with the order which we intended to

make, and did make, namely:

65

The appeal is upheld with no order as to costs and thejudgment of the Court a quo is set aside. The case is remittedfor the Court a quo to hear evidence as to the absence orotherwise of opportunity for sexual intercourse between the

Complainant (Respondent in the appeal) and her late husbandat about the time she conceived the child in question and there-

after to pronounce a fresh judgment.

The reason for this order is that even though the Appellantmay have had sexual intercourse with the Complainant at thetime she conceived a Court cannot make an order which wouldhave the effect of bastardising the child unless it is in addition

satisfied on the probabilities that the Complainant’s husbandcould not have been the father.

The Complainant’s evidence does not exclude the possibility

that her husband could also have had intercourse with her at

the time she conceived. She does say her husband was in hospital

when she and the Appellant fell in love (August, 1966), but she

does not say where her husband was when she become pregnant(January. 1967). The husband was apparently a tuberculosis

patient and was discharged from hospital after the birth of the

child, but it cannot be assumed from the foregoing that he wasin the hospital continuously from August, 1966, or before, until

after the child had been conceived.

The presumption of legitimacy expressed by the maxim “pater

est quem nuptiae demonstrant” exists to protect the child. Voet'sCommentaries 1.1.6,7 and 8. That the mother under oath points

to a man other than her husband as the father and that the

adulterer admits paternity is insufficient to rebut the presump-tion. S. vs Swart 1965 (3) S.A. 454 (A.D.) would apply, if at all,

only after the child has been found to be illegitimate, that

case referring as it does to all admissions as to intercourse,

even admissions made extra-judicially.

In Williams vs Williams 1925 T.P.D. 538 at 540 Tindall, J.

(as he then was), quoted with apparent approval the following

dictum of Kotze, J. P., in Fitzgerald vs Green 1911 E.D.L.432 at 461:

“And although the mother were carrying on an adulterous

intercourse with another at the time of conception, if the hus-

band and wife were living together, or he had the opportunity

of access to his wife, the child, when born, will be taken to belegitimate. (Voet Comm. 1.6.8 and of Taylor on Evidence, 10th

ed., sec. 106).”

Of course, this dictum would not apply if it could be shownthat despite access the husband could not be the father, due to

impotence etc.

From his reasons for judgment it appears that the Commis-sioner considered that the evidence showed sufficiently clearly

that the husband could not be the father, but this is not so.

Potgieter, President: I concur.

Bowen, Permanent Member: I concur.

For Appellant: Adv. R. T. van Schalkwyk, instructed by B. A.Dlamini, Johannesburg.

For Respondent: In person.

66


B.A.C. CASE 7/70

MAHONONO NGCAWE vs. JOSEPH TENTU

KING WILLIAM’S TOWN: 12th October 1970, before YatesPresident and Messrs Adendorff and Kruger, Members.

PRACTICE AND PROCEDURE

Sufficiency of evidence—corroboration of guilty wife concerningadultery—award of costs

Summary: Plaintiff sued Defendant for five head of cattle

or their value as damages for his adultery with the former’swife, Nowandile, in September 1968 as a result of which shehad given birth to a child of which Defendant was the

alleged father. The judgment of the Court was one of absolu-tion from the instance with no order as to costs. The Plaintiff

appealed aganst the judgment on the ground that Defendanthad admitted that he was intimate with Plaintiff’s wife in

December 1966, and that this evidence afforded the necessarycorroboration entitling him to a judgment in his favour.

The Defendant who had denied the adultery cross-appealedagainst the judgment depriving him of his costs.

Held: That in the absence of any rebutting evidence andwhere the fact was not a point in issue Plaintiff’s evidenceof a customary union between himself and his wife mustbe accepted even though it was denied in his plea.

Held further: That the admission of intercourse in 1966

had no bearing on the instant case when intercourse wasalleged to have taken place in September 1968.'

Held further: That there were no good grounds for deprivingDefendant of his costs.

Appeal from the Court of the Bantu Affairs Commissioner,Indwe.

Adendorff Pemanent Member:

Adendorff (Permanent Member) delivering the judgment ofthe Court:

This is an appeal against a judgment of the Bantu Affairs

Commissioner’s Court declaring absolution from the instance

with no order as to costs, in an action in which Plaintiff

(now Appellant) claimed from Defendant (now Respondent)the customary damages of five head of cattle or their value

R150, alleging in his particulars of claim that in or aboutSeptember 1968, Defendant committed adultery with his customarywife, Nowandile in consequence whereof she was renderedpregnant and gave birth to a female child in or about June

1969, of which Defendant is the alleged father. Plaintiff further

alleged that at all relevant times he was at work in the Capeand did not have access to his wife.

67

Defendant in his plea denied the allegations and pleadedas follows: “Save that Defendant pleads no knowledge of the

allegations that the said Plaintiff’s wife, Nowinile (sic), gave birth

to a female child in or about June 1969, which allegation hedoes not admit the Defendant denies each and every allegation

therein contained and puts the Plaintiff to the proof thereof.”

An appeal has been brought against this judgment on the

following grounds:

1. That the judgment is against the weight of evidence;

2. That on a balance of probabilities the Judicial Officershould have given judgment in favour of the Plaintiff;

3. That from the clear and honest manner in which Nowandilegave her evidence, coupled with the unsatisfactory demeanourof the Defendant in the witness box, and his admission that

he had committed adultery with the said Nowandile, whichhe chose to cite as December 1966, in most unusual circum-stances, affords evidence aliunde entitling the Court to acceptthe testimony of the said Nowandile as against that of the

Defendant”

Defendant noted a cross-appeal on the grounds that “thejudgment is bad in law in that there was no evidence aliundecorroborating the evidence of the Complainant and since theDefendant had given evidence under oath denying the allegations

made by the Complainant he was entitled to judgment withcosts.”

At the outset it must be pointed out that the standard ofproof required in adultery cases is the same as that in ordinarycivil cases, viz. proof on a preponderance of probabilities

“with this reservation that in considering the question whetherthere is a balance or sufficient balance of probabilities that

the alleged adultery has in fact taken place, the general impro-bability of such an occurrence dictated by moral and legal

sanctions against immoral and criminal conduct, is a factor to

be weighed”. See Gcukumaiti v. N’Tshekisa 1958 N.A.C. (S)

at p. 29, and also Seymour’s Bantu Law in South Africa (3rd Ed.)

p. 347.

The Commissioner found as a fact that Plaintiff had notproved that Nowandile was his customary wife despite the fact

that both of them stated under oath that such a customaryunion existed. However, except for the denial in the plea theexistence of the customary union was not contested. Plaintiff

and his wife were not cross-examined in this regard nor wasany evicence led in rebuttal so that it must be accepted as

a fact.

In the instant case Plaintiff’s wife Nowandile stated that shehad previously met Defendant at a shop near the Doornrivierdam and had accepted his proposal of love in January 1968.However, it was not until September 1968, when she met himat Indwe that at his invitation she accompanied him towardsthe Location and on the way they then were intimate for thefirst time in a sloot. No corroborative evidence of any sort

61046—3

68

was produced nor any explanation as to why Nowandile con-sented to intercourse in such casual circumstances. Except forher word there was nothing to link Defendant with her pregnancy.She did not report her condition and it was not until after

the child was born that Defendant was confronted with a claimparty.

Defendant denied the adultery but under cross-examinationstated that he had had intercourse with Nowandile in December1966 when she came to his house at the dam unexpectedlyafter he had proposed love to her. The latter, however, onbeing recalled, emphatically denied that this evidence was true

so that either she or Defendant was lying.

The Commissioner apparently accepted Defendant's evidencethat he had committed adultery with Nowandile in 1966 andcorrectly came to the conclusion that even if he had done sothat would have no bearing on the present case in which it

was alleged that intercourse had taken place in September 1968.

Mr Kelly who appeared on behalf of Plaintiff, however,contended on appeal that Nowandile’s denial that she andDefendant were intimate should be accepted and argued that

Defendant had merely altered the date of intercource to suit

himself and that this false testimony supplied the necessary

corroboration of Nowandile’s story. However, apart from the

fact that there was no necessity for Defendant to make anysuch admission, as pointed out by Mr Njamela who appearedfor Defendant, the latter’s evidence was no more improbablethan that of Nowandile.

The appeal therefore is dismissed with costs.

With regard to the cross-appeal the award of costs is, of

course, in the Court’s discretion but this discretion must beexercised judicially and the fundamental rule is that the success-

ful party is entitled to his costs except in exceptional circum-

stances. The grounds upon which a successful party may beordered to forfeit costs are set out at page 733 of Jones &Buckle (6th Ed.) and the only item which might apply is

“being guilty of misconduct generally.” In the instant case the

Commissioner gave as his reason for depriving Defendant of

his costs that the latter had misled his attorney and had given

his evidence in an unsatisfactory manner. However, these actions

would tend to harm his own case and would certainly not

prejudice Plaintiff’s claim. It seems to me that this is not a

case where the normal rule should be departed from. Thecross-appeal is allowed with costs and the judgment of the

Bantu Affairs Commissioner’s Court altered to one of “Absolution

from the instance with costs.”

Yates and Kruger, members, concurred.

For Appellant : Mr H. J. C. Kelly.

For Respondent: Mr S. Njamela.

69


B.A.C. Case 19/70

LUTANDO NOGANTA and MALCOM NOGANTA vs

KIPTON MNGENI

UMTATA: 23 September 1970, before Yates. President, andAdendorff and Hutchison, Members

DAMAGES FOR SEDUCTION and

PREGNANCY-DELAY IN REPORTING-EVIDENCE OF PREVIOUS VISITS

ADMISSIBLE-EFFECT OF ADMISSIONOF INTERCOURSE PRIOR TO

CONCEPTION

Summary: Plaintiff sued Defendant for damages for the seduc-tion and pregnancy of his ward Nompendulo. The latter

stated she fell in love with Defendant in April 1967. They wereintimate from time to time and in December 1968 she missedher periods. A child was born in August 1969. It was notuntil March 1969 that she reported her pregnancy to herpeople as she was a teacher and hoped to conceal the birth

of the child and resume her profession. Defendant admittedprevious visits to Nompendulo and stated that they had last

had intercourse in March 1968.

Held: The girl’s explanation that she did not report her preg-nancy at once because she hoped to retain her position as

a teacher was not improbable and in any event as she hadinformed defendant of her condition he was not prejudiced.

Held further: That evidence of previous visits was admissibleas pointing to a consistent course of conduct.

Held further: Admission of intercourse prior to conceptionplaced onus on defendant to prove by satisfactory evidencethat he was not in fact the cause of her pregnancy.

Appeal from the Court of the Bantu Affairs Commissioner,Butterworth.

Yates, President:

This is an appeal from a judgment of a Bantu Affairs Com-missioner’s Court for Plaintiff (now Respondent) for paymentof five head of cattle or their value R150, in an action in whichhe sued Defendant 1 as tortfeasor and Defendant 2 as his kraal-head (now Appellants), for damages for the seduction and preg-nancy of his ward Nompendulo.

70

Defendant 1 denied that he seduced Nompendulo.

An appeal has been brought on grounds which amount to

—

1. that the explanation given by Nompendulo for her delayin reporting her pregnancy was unsatisfactory;

2. that Nompendulo’s evidence was not sufficiently corrobo-rated;

3. that the judgment is against the weight of evidence and theprobabilities of the case.

Nompendulo, who was a teacher, at Tobotshane School,stated that she fell in love with Defendant 1 in April 1967 andthey were intimate from time to time thereafter. During 1968she lived at Godsho’s kraal where Defendant 1 visited her in

June, October and November and had intercourse with her in

a hut which she shared with her sister Ntombizonke and hercousin Mazibulo. She missed her periods in December and told

Defendant 1. In January 1969, after she had consulted a doctor,

Defendant accepted that he was responsible for her conditionand they then discussed the possibility of getting a doctor to give

her sick leave without mentioning that she was pregnant so that

after the child was born she could resume her teaching career.

Defendant then asked a Mrs Monakali to approach a doctor whichshe did but the doctor would not co-operate. Defendant 1 thenrepudiated liability and Nompendulo reported her pregnancy to

her aunt in March of that year. She gave birth to a femalechild on 11 August 1969.

Mr Sogoni who appeared for the Defendants pointed out that

although Nompendulo stated that she knew in December that she

was pregnant she did not make a report to her relatives until

March and contended that this delay was fatal to her case. It

is correct that under tribal conditions failure to report is detri-

mental to Plaintiff’s case but in the instant case the parties wereboth teachers and Christians and Nompendulo’s explanation

that she had discussed the matter with Defendant 1 and they

had agreed that she should attempt to conceal her pregnancy byobtaining sick leave and then returning to her profession is

not improbable in the circumstances. Further, as pointed out byMr Muggleston in his argument for Plaintiff, the Defendantadmitted that Nompendulo had informed him of her condition

in December 1968, i.e. as soon as she was sure that she was preg-

nant, so that he was not prejudiced by any delay.

Mr Sogoni also referred to discrepancies in Nompendulo’s evi-

dence in regard to the reasons she gave for this delay but a

reference to the record reveals that these so-called discrepancies

are more apparent than real.

Mrs Monakali who also taught at Tobotshane School stated

that she had been approached by Nompendulo and had men-tioned the matter to a Dr Bala to whom she was related bymarriage and who told her that he could not assist her. In

evidence Dr Bala stated that female teachers did sometimesattempt to obtain sick leave in these circumstances without their

condition being mentioned.

71

Mr Sogoni argued that the Commissioner was wrong in rejecting

Mrs Monakali’s evidence that Nompendulo alone and not Defen-dant had approached her for assistance in obtaining a false

medical certificate. The Commissioner gave satisfactory reasonsfor making this decision. Moreover as pointed out by Mr Muggle-ston, even if her evidence is discarded the remaining evidenceprovides ample corroboration of Plaintiff’s case.

Nompendulo’s evidence was confirmed by Ntombizonke andMazibulo. Ntombizonke stated that on the occasion of the visit

in June both she and Mazibulo were asleep when Defendant 1

arrived but woke up and went to sleep again with him still in

the hut. When she awoke next morning he was gone. The nextoccasion he arrived after school and spent the night in the roomand on the third occasion in November he again arrived after

school. She did not sleep in the same hut but next morningshe found him there in bed. Mazibulo also confirmed the visits

in June and November.

Mr Sogoni contended that because the two girls stated that

they saw Defendant 1 still in bed on the morning after his

arrival on the crucial November occasion whereas according to

Nompendulo he had left before they arrived, this evidence wasnot to be believed and should be discarded. However, as pointedout by Mr Muggleston, this discrepancy was taken into accountby the Commissioner and may well have been due to faulty

recollection by Nompendulo. They all stated that Defendant hadslept there that night. No reason was advanced why the evidencein regard to the previous visits should not be believed and this

all pointed to a consistent course of conduct. The evidence in

regard to the previous visits was admissable vide Batyi, d.a. v.

Nongcula & Ano, 1962 N.A.C. 86 (S).

Defendant 1 admitted that he had been in love with Nompen-dulo and stated that he had last had intercourse with her in March1968, in the room in which the other two girls were sleeping.

His evidence that he had rejected her towards the end of that

month because he had heard that she had other boy friends doesnot carry conviction bearing in mind that shortly before his

discharge from hospital in that month after a leg injury he hadwritten to Nompendulo stating that he would see her in a fewhours. There was certainly no indication in the letter of anyrejection. Furthermore he admitted having visited Nompenduloin June, October and November 1968 (thus bearing out the

evidence of Nompendulo and her two witnesses in this regard),

although he denied having had intercourse on these occasions

and this loo is an indication that there had been no rejection.

The allegation was also not put to Nompendulo in cross-exami-

nation.

In the light of Defendant’s admission of intercourse with Nom-pcndulo even though at a time prior to that of conception the

onus was on him to show by satisfactory evidence that he wasnot in fact the cause of her pregnancy. In other words, withoutsuch evidence, the woman’s testimony is to be accepted in pre-

ference to that of the man unless the Court finds that she is not

worthy of credence, vide Baccla v. Mbontsi 1956 N.A.C. 61 (S)

72

at p. 68. Applying this statement of the law to the instant case nogood reason has been advanced why the evidence of Nompen-dulo should not be accepted and, as pointed out by the Com-missioner in his “Reasons for Judgment”, her conduct was entirely

consistent with her allegation the Defendant 1 had rendered herpregnant in November 1968.

The Commissioner in his able “Reasons for Judgment” held onthe other hand that the Defendant was a most unsatisfactory

witness and gave cogent reasons for coming to this decision.

This Court is of the same opinion. Further Defendant’s alleg-

ations of previous improper conduct by Nompendulo were notsubstantiated in any way.

The apeal therefore is dismissed with costs.

Adendorff and Hutchison, members, concurred.

For Appellants: Mr R. Sogoni

For Respondent: Mr K. Muggleston.

73


B.A.C. CASE 22/70

DLAMINI GENRAL DEALER vs. ESTER MOKOROTO

KING WILLIAM’S TOWN: 13 October 1970, before Yates,

President and Adendorff and Kruger, Members.

PRACTICE - ISSUE OF SUMMONS FORDEBT AGAINST A BANTU WOMAN

Summary: Plaintiff issued a summons for debt against a

Bantu woman who failed to enter an appearance to defendor file a plea. The Bantu Affairs Commissioner raised the

point mero motu that Defendant had no locus standi to besued and refused to grant a default judgment.

Held: That whether or not Defendant had the capacity to

be sued was not a point in issue until specially pleaded.

Held further: That the Commissioner had no right to raise

the question of Defendant’s capacity mero motu.

Appeal from the Court of the Bantu Affairs Commissioner,East London.

Yates (President):

Good cause having been shown the application for condonationof the late noting of the appeal was granted.

This is an appeal from a judgment of a Bantu Affairs Com-missioner’s Court in which a request for a default judgmentwas refused.

Plaintiff issued a summons against “Esther Mokoroto, a Bantufemale adult, of c/o 41 Kuze Street, Duncan Village, EastLondon” for an amount of R4,75 for goods sold and delivered.

The summons was duly served but no appearance to defendwas entered and on 12/3/1970 a request for a default judgmentwas refused by the Court.

An appeal has been noted on the grounds that

—

(1) The learned Additional Bantu Affairs Commissioner mis-directed himself by refusing the application for defaultjudgment and holding that ex facie the summons the Defen-dant has no locus standi in judicio when there is no allegation

in the summons that the Defendant is a married woman;

(2) that the learned Additional Bantu Affairs Commissionererred in law and in fact in presuming that the Defendantwas a married woman as appears from his reference to thewords “wife” and “married woman” on page 2 of his reasonsfor judgment as well as the cases cited on page 3 thereof;

74

(3) that the learned Additional Bantu Affairs Commissionererred in law in refusing the Plaintiffs request for defaultjudgment when the allegations in the summons fully complywith the Rules of the above Honourable Court.”

In his original “Reasons for Judgment”, furnished by the

Additional Bantu Affairs Commissioner at the request of

Plaintiff’s attorney in terms of subrule 2 (1) of the Rules forBantu Appeal Courts (Government Notice R. 2084 of 1 967),he correctly stated that the only points in issue were whetherthe Court was correct in holding that ex facie the summons the

Defendant could not be sued, and if so, whether Defendant hadto raise the question of locus standi herself or whether the

Court had the legal right to raise it mero motu.

The Commissioner dealt with the matter both under BantuLaw and Custom and under Common Law and in regard to

the latter, came to the conclusion, if I read his “Reasons”correctly, that the Court had the right mero motu to raise

the question of Defendant’s locus standi to be sued and that

a woman’s status must be described in the summons either as

a major spinster (femme sole) or as a married woman, in whichcase her capacity must be set out.

As pointed out by Mr Sogoni, who appeared on behalf of

Plaintiff, the particulars required in a summons as set out in

Rule 35 of the Rules for Bantu Affairs Commissioner’s Courtscontained in Government Notice 2083, dated 29/12/1967, donot include the status of the Defendant.

This matter is dealt with at p. 413 of the Civil Practice

of the Magistrates' Courts in S.A. (Jones & Buckle, 6th Ed.)

where it is stated:

“There is no presumption of incapacity where a woman is

sued unless it is stated that she is a married woman (whichis not the case here). It follows that there is no need to allege

that a woman is a feme sole, but where she is stated to bea married woman, and it is contended that despite this she

has locus standi in judicio, the person alleging this must prove it.”

Furthermore whether or not she has locus standi is a matterpeculiarly within her own knowledge—she knows her own status

—

and she can raise this point as a special plea or she can bya request for particulars get Plaintiff to plead facts which showthat she has no locus standi and can then except on the groundsthat no cause of action is disclosed. See Jones & Buckle (supra)

at p. 390.

The defence that Defendant lacks capacity to be sued mustbe specially pleaded. See note 14 at p. 529 of Jones & Buckle(supra) and Natalse Landboukoopcrasie Bpk. v. Jordaan 1961(2)S.A. 583 N.P.D. in which is quoted with approval an extract

from the judgment of Ramsbottom J. in the case of Neseman& Neseman v. Stratford 1957 (2) S.A. 363 (W) viz. “There wasno allegation in the summons that the Defendant was a marriedwoman—the description did not show that she was married

—

and there was therefore nothing in the summons to show that

she had no locus standi in judicio.”

75

In the instant case therefore under common law it is clear

that the summons is in order and that a default judgment shouldhave been granted.

The Commissioner stated that had the matter been consideredunder Bantu Law, he would have come to the same conclusionbecause Bantu law does not recognise the right of a femaleto contract unaided. However, Bantu law and custom is notinvolved in this case in any way. It is a straight forward trans-

action of sale and purchase and in the absence of special

circumstances it seems clear that matters of this natureshould ordinarily be dealt with according to common law. Seesubsection 11 (3) of Act 38 of 1927 (The Bantu AdministrationAct), which provides that ’ the capacity of a Bantu to enterany transaction or to enforce or defend his rights in anyCourt of law shall subject to any statutory provision affecting

any such capacity of a Bantu, be determined as if he were aEuropean ...” and see also ex parte Minister of Native Affairs

:

in re Yako v. Beyi 1948 (1) S.A. 388 (A.D.) at pages 395/6.

The appeal is allowed and the judgment of the BantuAffairs Commissioner’s Court is altered to read: “Default judg-ment is granted as prayed with costs.”

As this appeal is in the nature of a test case and as Defendantwas not represented there will be no order as to costs.

Adendorff and Kruger, members, concurred.

For Appellant: Mr R. Sogoni.


76


B.A.C. CASE 9/1970

JIKELEZA SOGONI vs. DAVID JACISA

UMTATA: 30 November 1970, before Yates, President, andAdendorff and Hooper, Members.

BANTU CUSTOM

Dowry—Liability of dowry-eater to return dowry paid forsecond customary union where first marriage by civil rites

still existed.

Summary: Defendant’s sister was married by Christian rite

in 1958 and dowry paid for her. She subsequently left herhusband’s kraal and purported to enter into a customaryunion with Plaintiff who paid dowry for her and withwhom she lived for five or six years. The previous dowryhad been ketaed, i.e. returned to the first husband. Plain-

tiff then discovered the marriage certificate and sued forthe return of his lobola on the ground that the first

marriage still existed.

Held: Where Plaintiff knew, when contracting a customaryunion, that the woman’s previous marriage by Christianrites had not been dissolved, he is not entitled to return

of lobola.

Appeal from the Court of the Bantu Affairs Commissioner,Mount Frere.

Yates, President:

This is an appeal from a judgment of a Bantu Affairs Com-missioner’s Court for Plaintiff (now Respondent) for the return

of four head of dowry cattle or their value R160 with costs.

He alleged in his particulars of claim:

“1. The parties are Bantu as defined in the Act.

2. Defendant is the brother and dowry eater of his sister

Ntombokwenzani according to custom.

3. On or about six years ago Defendant wrongfully andunlawfully held out to the Plaintiff that the said Ntombok-wenzani was marriagable.

4. That the said Ntombokwenzani did in effect effect a ‘keta’

from her previous husband.

5. That as a result of the assurance given by the Defen-dant, the Plaintiff entered into a customary union with the

said Ntombokwenzani and paid the above described cattle as

dowry.

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6. That in 1968 the Plaintiff discovered a marriage certificate

from the said Ntombokwenzani which certified that she hadmarried by civil rites to her previous husband and that themarriage still subsists.

1

7. In the premises Plaintiff is entitled to the delivery to himof the said dowry cattle or payment of their value on the

grounds of fraudulent misrepresentations.”

Defendant (now Appellant) pleaded as follows:

“1. Paragraph 1 and 2 are admitted.

2. Paragraph 3 and 4 are denied and Plaintiff is put to the

proof thereof.

3. Paragraph 5 is admitted sure (sic) and except the assurancereferred to therein.

4. Paragraph 6 and 7 are denied and Plaintiff is put to the

proof thereof.

5. Defendant avers that Plaintiff has always known that thesaid Ntombokwenzani was married by Christian Rites.

6. Defendant further avers that the said customary unionentered into by Plaintiff and the said Ntombokwenzani will

remain in force until properly dissolved be it on the groundthat it is void ab origine. In the absence of a dissolution the

said contract subsists.”

An appeal has been brought against the judgment on groundswhich amount to this, that it is against the weight of evidenceand the probabilities of the case and that Plaintiff failed to

establish that when he entered into a customary union withNtombokwenzani he did not know that she was married to

Milton Pundweni by civil rites.

It is common cause that Defendant is the dowry eater andguardian of Ntombokwenzani who was married to Pundweniby Christian rites in 1958. Dowry was paid for her. Sub-sequently Ntombokwenzani left her husband’s kraal and duringthe subsistence of the marriage purported to enter into a cus-

tomary union with Defendant who paid four head of cattle to

Defendant’s agent as dowry.

This customary union was void ab initio [vide Bantu Lawin S.A. by Seymour at pages 105 and 250 (3rd Ed.)]. Until amarriage is dissolved it continues in force and therefore the

woman’s guardian in the instant case had no right to give herin a customary union. It has been held that where a secondpurported union has been entered into before the dissolution

of the first, the second “husband” if mala fide cannot claimreturn of his deserting wife or restoration of dowry, but if heis bona fide the woman’s guardian alone is in delicto and is

thus obliged to restore the second dowry on demand, videJela v. Qamba 1963 N.A.C. 71 (S); and Gqozi v. Mtengwane1960 N.A.C. 26 at p. 29 and Seymour (supra) at p. 190 and343. The authorities cited refer to a prior customary union butthat it should also apply where the first union is a civil

marriage accords with one's conception of public policy andnatural justice.

78

A decision in this case therefore hinges on the questionwhether or not Plaintiff knew, when he purported to enter

into a customary union with Ntombokwenzani, that she wasmarried to Pundweni by Christian rites.

According to Plaintiff’s evidence he first approached Defen-dant at a beer drink in regard to a customary union with thelatter’s sister, Ntombokwenzani, whom at that stage he had notmet, and later, at Defendant’s kraal, he was told that shehad been married before but that the union had been dissolvedby the keta (return) of the dowry. No mention was madeof the fact that the previous marriage had been by Christianrites. Under cross-examination, however, he stated that whenhe asked for Defendant’s sister in marriage Defendant was awayat work and he spoke to Defendant’s brother. His only witness,August Mapoyi, stated that he accompanied Plaintiff and metDefendant at the latter’s kraal. He also stated that Ntombok-wenzani was wearing long dresses, i.e. that she was dressed asa married woman whereas according to Plaintiff she was dressedas a single girl. Mapoyi confirmed Plaintiff’s evidence that theywere told that the previous dowry had been ketaed and that

the girl was available for marriage. Defendant, however, deniedthat he had been approached in the matter and William Sogoni,who was the “eye” of his kraal, and Ntombokwenzani con-firmed that he was away at the time. It is clear that even if

Plaintiff did originally speak to Defendant the principle

negotiator on Defendant’s side was William whom Mapoyi didnot meet.

Plaintiff did not mention it but his witness Mapoyi con-firmed the testimony of Defendant’s witnesses that Ntombok-wenzani was first twalaed by Plaintiff. Two head of cattle werepaid by the latter and Ntombokwenzani was then returned to

Defendant’s kraal and only after the fourth beast was paidwas she finally permitted to live with Plaintiff as his wife andshe remained with him for at least five or six years.

William stated that he had told Plaintiff when he originally

asked for Ntombokwenzani’s hand in marriage that she wasmarried by Christian rites and Plaintiff had replied that hewould take steps to have the marriage dissolved. This evidencewas confirmed by Ntombokwenzani who stated that she hadinformed Plaintiff that she was married by Christian rites andhe had told her that he would give her money so that shecould procure a divorce. Neither of these two witnesses wascrossexamined on this point. The headman Pelepele Sogoni also

testified that Plaintiff knew very well that Ntombokwenzani wasmarried by civil rites when he paid dowry for her and hadstated that he would institute divorce proceedings against herhusband. It is true, however, that he did not explain how heknew this.

William was clearly wrong in negotiating with Plaintiff for

Ntombokwenzani’s marriage and in accepting dowry from himbut according to his evidence he thought that by delivery

(ketaing) this stock to Pundweni the Christian marriage could

be dissolved. In fact the probabilities are that all the parties

concerned were under this impression and it was only after

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Plaintiff and Ntombokwenzani had lived together for some yearsand after they had parted as a result of a quarrel that Plain-

tiff decided to take advantage of the fact that Ntombokwen-zani was legally married to another man and attempted torecover his lobola. We only have his word that he did notknow at the time that Ntombokwenzani was married by civil

rites whereas the weight of evidence and the probabilities point

to the fact that he was aware of it.

Had the original contract been a customary union it is clear

that there would have been no possibility of Plaintiff recoveringhis lobola in these circumstances and it would be inequitable

if he were able to do so merely because some years after the

event he discovered that the original contract had been con-cluded according to civil rites.

In my view Plaintiff has failed to discharge the onus ofproving that at the time he entered into the customary unionwith Ntombokwenzani he did not know that she was legally

married.

The appeal is allowed with costs and the judgment altered

to one for defendant as prayed with costs.

Adendorff and Hooper, members concurred.

For Appellant: Mr T. Berrange.

For Respondent: Mr K. Muggleston,

80


JACKSON MAPONGWANA vs. NOVEMBER SIHEWULA

B.A.C. CASE 34/1970

UMTATA: 3 December 1970, before Yates, President and Aden-dorff and Botha, Members

PRACTICE AND PROCEDURE

Not necessary to withdraw a summons based on the samecause of action before issuing a fresh summons—Court hasa discretion to allow the second action to proceed—furtherattempt to putuma constitutes a fresh cause of action wherePlaintiff is suing for the return of his wife.

Summary: Plaintiff obtained a judgment for the return of

his wife, failing which dissolution of the union and refundof lobola. An appeal was allowed and the case returned for

hearing of further evidence. Plaintiff then made a fresh attemptto putuma his wife and on her failure to return issued asecond summons without withdrawing the first.

Held: That there was nothing to prevent him doing so.

Held: That the Court had a discretion to allow the secondaction to proceed.

Held: That the fact that the second case was heard by the

same judicial officer who heard the first was no ground for

his recusal.

Appeal from the Court of the Bantu Affairs Commissioner,Mqanduli.

Yates, President.

The Plaintiff (now Respondent) sued the Defendant (nowAppellant) for the return of his wife, Nowayilesi, failing whichfor an order dissolving the customary union and the return of

dowry consisting of an existing red cow valued at R40 andseven other cattle or their value R30 each (ie. 10 head less

a beast for each of two children). He alleged that in April

1967 Nowayilesi wrongfully deserted him and despite repeated

putumas Defendant has refused to return her to him.

Defendant in his plea admitted that he had received eight

head of cattle but denied the other allegations.

81

The Bantu Affairs Commissioner ordered that “Defendantreturns to Plaintiff his wife, Nowayilesi, within 14 days fromtoday, failing which the customary union subsisting betweenPlaintiff and Nowayilesi is dissolved and Defendant is ordered

to refund Plaintiff eight head of cattle being returnable dowryor their value R30 each plus costs.”

Against this judgment Defendant has appealed on various

grounds which amount to this

—

(a) that the judgment is against the weight of evidence and the

propbabilities of the case;

(b) that Plaintiff had failed to putuma his wife; and

(c) that in view of the fact that a previous case betweenthe same parties and in respect of the same subject matterhad been remitted by the Bantu Appeal Court to enable the

Defendant to call further evidence for hearing it to a conclusion,

the present action was invalid as the first action had not

yet been decided.

In 1967 the Plaintiff issued a summons against Defendant(District Case 159/1967) and obtained a judgment ordering the

latter to return his wife within a specified time or failing whichthe customary union was to be dissolved and the dowry returned.

The Defendant appealed against this judgment (Bantu AppealCase 54/1968) on the grounds that his application to call

further witnesses has been refused. The appeal was allowed on22 January 1969, the judgment was set aside and the case

returned to the Court a quo for hearing to a conclusion. Nofurther steps were taken, however, and in November 1969 thepresent summons was issued and the case heard by the samejudicial officer who presided at the first trial. That it was in

order for him to do so is clear. See The Civil Practice of the

Magistrates’ Courts of S.A. by Jones & Buckle (6th Ed.) at

p. 14 where it is stated “It is no ground for recusation that

the judicial officer expressed on opinion at a previous stage in

the same case which was based on the hearing of the case

itself—even if it was between the same parties and involved the

same facts.” Had the original case been continued the samejudicial officer would of necessity have presided so that there

was no possibble prejudice to Defendant in him hearing thepresent case.

As pointed out by Defendant, subrule 54 (2) of the Rulesfor Bantu Affairs Commissioners’ Courts (G.N. 2083 of 1967),

provides that a Plaintiff desiring to withdraw an action “shall

deliver a notice of withdrawal” but a perusal of Rule 54indicates that apart from giving him notice it is designed toenable the Defendant to lodge a claim for his costs. The rule

also provides that if the action is not proceeded with theDefendant may apply for the dismissal of the summons. Thereis no rule that a fresh summons may not be issued even thoughthe original case is pending. On application the Court may in

such circumstances stay the second action but the Defendantis not entitled as of right to a stay and the Court has a dis-

cretion to allow the case to proceed if it deems it just andequitable to do so or where the balance of convenience favoursit. Vide Jones & Buckle supra at p. 542. The issue of the first

82

summons and the judgment indicated clearly to Defendant that

if he wished to avoid repaying lobola he should return Plaintiff’s

wife. As long as she remained with Defendant the latter wasin jeopardy and where a fresh attempt at putuma had beenmade, after the issue of the first summons, Defendant can hardlybe said to have been prejudiced by the issue of a second summons.

It is common cause that Nowayilesi left the Plaintiff in aboutMarch 1967 and has not returned to mim. Plaintiff stated that

he went to putuma her two weeks later and again a week after

that but she did not return. He then issued summons but onappeal the judgment he obtained was set aside to enable Defen-dant to call supplementary evidence in regard to the alleged

putuma. In winter of 1969 he again went to putuma his wife,

accompanied by his son, but received a hostile reception andhis wife was not returned to him. He then issued the present

summons. His evidence was confirmed by his son Notata, a

man of about 36 years of age and no good reason has beenadvanced why these witnesses should be disbelieved.

Defendant denied that Plaintiff ever putumaed his wife but

admitted that in 1969 Plaintiff and his son came to see himHis statement that he was busy and did not ask nor was told

what they had come for is unlikely. The evidence of NondyendyeKlaushe to the effect tha Plaintiff and his son did not goto Defendant’s kraal to putuma does not carry much weightin view of the fact that he lived about i mile from Defendant’skraal and admitted that from time to time he was away for twoor three days.

The Commissioner who had the advantage of hearing andseeing the witnesses give evidence was satisfied that Plaintiff

had attempted to get his wife back and this Court has not beenpersuaded that he was wrong in coming to this conclusion.

The appeal is dismissed with costs.

Adendorff and Botha, members, concurred.

For Appellant: In Person.

For Respondent: Mr K. Muggleston.

83

NORTH EASTERN BANTU APPEAL COURT

ELLIOT MTHETHWA vs. VIRGINIA NDABA


DURBAN: 30 November 1970, before Cronje, President andCraig and Addison, members.

JURISDICTION

MAINTENANCE

Jurisdiction—trial court—essentials.

Summary: Plaintiff instituted a common law action against

Defendant in the Court of the Bantu Affairs Commissioner,Durban, for maintenance for her two illegitimate children:

It was common cause that the children were conceived andborn outside the Durban area that Defendant did not reside

on carry on business or engage in employment within the

Durban area and that there was no agreement in writing to

the Durban Court’s jurisdiction.

Held: That the Court of the Bantu Affairs Commissioner,Durban did not have jurisdiction to hear the case.

Cases referred to:

Qunta vs Qunta 1940 N.A.C. (C. & O.) 131; McKenzie vs

Farmers’ Co-operative Meat Industries 1922 A.D. 16.

Riversdale D.C. vs Pienaar 3 S.C. 252.

Laws referred to:

Bantu Administration Act, No. 38 of 1927 Sec. 10.

Appeal from the Court of the Bantu Affairs Commissioner,Durban.

Cronjd, President:

Plaintiff (now Respondent) obtained a default judgment against

Defendant (now Appellant) ordering him to pay R10 per monthfor the support of Plaintiff’s two minor children of whom he is

allegedly the father.

His application to have the default judgment rescinded wasrefused and he now appeals to this Court for relief on thefollowing grounds:

“(1) The Court erred in dismissing Defendant’s applicationfor rescission of the default judgment.

61046—4

84

(2) The Respondent failed to prove that Applicant was mwilful default and in any event the probabilities are in favourof the Applicant”.

Mr Chadwick for Defendant argued mainly that the Court ofthe Bantu Affairs Commissioner, Durban, had no jurisdiction tohear the matter and, a fortiori, to grant a default judgment.

He admitted at the outset that this point was not specifically

mentioned in the grounds of appeal but pointed out that it hadbeen taken in the Court a quo. He submitted that it was coveredby the first ground of appeal.

This Court is, in any event, entitled to take cognisance ofomitted points of law—vide Qunta v. Qunta 1940 NAC (C. &O.) 131.

The facts relevant to the question of jurisdiction are the follow-

ing: Plaintiff’s summons, issued out of the Court of the BantuAffairs Commissioner, Durban, alleges that Defendant is the

father of her two minor children born as a result of sexual inter-

course between herself and Defendant during, respectively,

1959 at Hlobane (which would appear to be in the District of

Vryheid) and during 1962 at Paulpietersburg.

A Bantu Affairs Commissioner’s (Court, has, in terms of

section 10 of the Bantu Administration Act, 1927 (No. 38 of

1927), jurisdiction in the area for which it is constituted. Theproviso to section 10 (3) limits the jurisdiction of the Court in

respect of persons as follows

:

“Provided that a Court of Bantu Affairs Commissioner shall

have no jurisdiction in any case unless

—

(a) the Defendant or Respondent in that case resides or

carries on business or is employed in the area of jurisdiction

of that Court; or

(b) the cause of action in that case arose in that area; or

(c) the parties to the proceedings in that case have agreed in

writing to the Court’s jurisdiction”.

It is common cause that the Defendant, a constable, was at the

time of the issue of summons and at all relevant times thereafter,

stationed— and therefore resident as well as employed—at Paul-

pietersburg.

It is also common cause that the parties have not agreed, in

writing, to the jurisdiction of the Bantu Affairs Commissioner’s

Court, Durban.

In so far as the qualifications relating to residence and consent

are concerned, that Court is accordingly deprived of jurisdiction

by virtue of the provisions of paragraphs (a) and (c) of section

10 (3) of the Act.

It follows that the Court of the Bantu Affairs Commissioner,

Durban, could only be seized of jurisdiction if the cause of action

in the instant case arose in its area.

85

The Appellate Division in McKenzie v. Fanners’ Co-operative

Meat Industries Ltd, 1922 A.D. 16, accepted that “cause of

action” means “every fact which is material to be proved to

entitle the Plaintiff to succeed and every fact which the Defendantwould have a right to traverse”.

Put differently, before it can be said that the cause of action

in the instant case arose within the area of the Court of the

Bantu Affairs Commissioner, Durban, the Plaintiff should be in

a position to show that all material facts which must be provedto enable her to succeed, arose within that area. Of these the mostimportant is, naturally that the Defendant is the father of her

minor children.

Her particulars of claim, however, aver that sexual intercourse

between her and Defendant, which involves the question of

paternity of her minor children, occurred not in the area of the

Durban Court, but in the areas of the Courts at Paulpietersburg.

and, so it would appear, also at Vryheid. It is evident, therefore,

that the cause of action in the instant case did not arise in the

area of the Court of the Bantu Affairs Commissioner, Durban.

In the result that court was also not on the grounds of causeof action possessed of jurisdiction to hear the matter and couldnot have made the default judgment. The appeal must, there-

fore, succeed.

A judgment is void ab origine when the Court has no juris-

diction vide Riversdale D.C. v. Pienaar 3 S.C. 252. It follows that

the pleadings and proceedings in the Court of the Bantu Affairs

Commissioner, Durban, were without force and effect.

The appeal was accordingly allowed with costs and the plead-ings and proceedings in this case were set aside.

Craig and Addison, members, concurred.

For Appellant: Adv. A. I. J. Chadwick.


61046 •5

86

NORTH EASTERN BANTU APPEAL COURT

PIKA NGCOBO vs. GLADYS NOBONGO DHLAM1NI


PIETERMARITZBURG: 9 December 1970, before Cronje,President and Craig and Harvey, members.

MAINTENANCE

Claim under Act 23 of 1963—essentials—late noting ofappeal—condonation—grounds—just cause.

Summary: An award was made arbitrarily without anyevidence being led as to the illegitimate child's need of supportor as to the financial standings of its mother and of its

natural father.

Held: It must be established that a child is in need of

the support of its father.

Held: It must be established that the natural father is in

a position to support the child and to what extent he is

capable of rendering support.

Cases Referred to:

Tshaka vs Siqol'ana & ano. 1957 N.A.C. 121 (S).

Mbhele vs Celc 1944 n.a.c. (N. & T.) 28.

Letlatsi vs Mokoteli 1956 N.A.C. 142 (N.E.).

Laws Referred to:

Maintenance Act, No. 23 of 1963.

Natal Law, No. 10 of 1896.

Rules Referred to:

Bantu Appeal Courts Rules 4, 16.

Works Referred to:

Warner: “A Digest of S.A. Native Civil Case Law” paras.

'3772—3773,

Appeal from the Court of the Bantu Affairs Commissioner,Pietermaritzburg.

Cronje, President:

The Respondent in this appeal, Gladys Dhlamini, was the

Complainant in a claim for maintenace under Act 23 of 1963.

against Pika Ngcobo, the present Appellant. As a matter of

convenience and to obviate confusion they will be referred to

hereinafter as Plaintiff and Defendant, respectively.

Shortly, Plaintiff’s claim was for maintenance of her 11 year

old illegitimate child of which she alleged Defendant was the

father. According to the summons, the child, presumably a female,

bore the same names as its mother vix. Gladys Nobongo andwas of an age of 1

1years, having been born in 1959.

87

The Bantu Affairs Commissioner found that Defendant wasthe father of the child and made an award of R8 per month“in lieu (sic) of maintenance” against Defendant, the payments“to commence from 5 June 1970.”

.An appeal to this Court was noted, out of time, by Defendanton the following grounds:

“The learned Presiding Officer erred in

—

(a) accepting the uncorroborated evidence of the Complain-ant in preference to the evidence given by and for the

Appellant; and

(b) ordering the Appellant to pay R8 per month “in lieu

of maintenance without having heard any evidence as to the

amount required by the Complainant or as to the Appellant’s

and Complainant's means.”

The first matter for consideration is an application for con-donation of the late noting of the appeal. Judgment was given

on 1 May 1970, and appeal noted on 17 July 1970, i.e. some43 days late, vide Bantu Appeal Court Rule 4. The affidavits

supporting the application contain some remarkable statements.

Defendant, in his affidavit set forth very clearly the natureof the proceedings and the judgment awarded, but the attorney’s

clerk, one C. T. Zulu, stated in his affidavit that on the

occasion of his first interview with Defendant the latter “wasquite vague of the nature of the case against him. When I

interviewed him to explain to me whether this was a civil

action or a criminal case, he was unable to explain”. Diffidencein the acceptance of Zulu’s statement is irresistible.

The tenuous and overworked excuse that an appeal couldnot be noted until a copy of the record had been receivedwhich was put forward by both deponents is unacceptable. Noreason was advanced why an appeal could not have been notedforthwith on the general ground that the judgment was againstthe evidence and the weight of evidence. Leave may be soughtat a later stage to add to the grounds of appeal vide Bantu.Appeal Court Rule 16.

Furthermore the application gives no indication of “just cause”vide Bantu Appeal Court Rule 4; Defendant merely expressedthe view that “I have a reasonable chance of success in this

appeal”.

Standing alone the application invited dismissal but as therewere prospects of some success on appeal the application forcondonation was granted with an order that Defendant pay thecosts thereof.

According to Plaintiff she and Defendant first became intimateduring 1955, and this intimacy continued for some 14 years.She said she fell pregnant to him in 1959 and the child con-cerned was born in December 1959, at the Edendale Hospital.Defendant, in turn, said he first met Plaintiff in 1951 but thencorrected himself and said it was 1961. He denied paternity.

Plaintiff's evidence that her Edendale Hospital expenses werepaid by Defendant and that he had supported the child sinceits birth and until 18 November 1969, when he fell in lovewith another woman stood unrefuted by Defendant. This

88

evidence was consistent with her testimony and inconsistent withhis innocence Tshaka vs Siqolwia <& ano. 1957 NAC 121 (S),

and provides the necessary corroboration of her indication of

Defendant as the father of her illegitimate child Hilda.

The appeal on the ground of lack of corroboration fails andthe Commissioner cannot be faulted for finding that Defendantis, indeed, the father of Plaintiff’s child.

The award of R8 per month;however, cannot be permitted

to stand in the circumstances disclosed. There is no doubt that

it was arbitrary and though the Commissioner's submission (>sic)

that “R8 per month is not unreasonable for a child of 1

1

years” may be sound, there is nothing on record to establish

that Defendant is capable of paying it. Furthermore, there is

nothing on record to establish that the child is in need of

support. In this connection I draw attention to the cases of

Mbhcle vs Cele 1944 N.A.C. (N. & T.) 28 and Letlatsi vs

Mokoteli 1956 N.A.C. 142 (N.E.), the judgments of which cases

are summarised by Warner in his “A Digest of S.A. NativeCivil Case Law'’ at paras. 3772 and 3773. Although those judg-

ments were given while Natal Law, No. 10 of 1896, was in

force, the principles enunciated are apt in the instant case.

No evidence was tendered by either party as to her/hisfinancial standing as it was incumbent upon them to do nordid the Court canvass those points as it should have done.This despite the allegation in the summons that Defendant hadfailed to maintain despite “being in a position to do so” andthe injunction on Defendant “to obtain a statement giving full

particulars of your earnings duly signed by your employer.”Presuming that that injunction is permissible I suggest that the

following words be added to it viz. “and produce it to this

Court”. Furthermore, as pointed out by Mr Menge, the summonsshould indicate the dates from which and to which maintenanceis sought.

It is clear that these vital requirements were overlooked bythe Court a quo and all concerned and the case will haveto be sent back for further hearing.

The appeal in regard to the award succeeds but in view of

the injunction that defendant obtain a statement regarding his

earnings and his failure to do so it is my view that an awardof appeal costs in his favour would be unjustified.

In the result the appeal is dismissed in part and allowedin part with no order as to costs. The Commissioner’s finding

that Defendant is the father of Plaintiff's illegitimate child Hildais confirmed.

The maintenance award is set aside and the case is remitted

back to the Court a quo in order that the child's need of

support by Defendant, and the financial standings of bothPlaintiff and Defendant may be full canvassed and, thereafter,

a fresh judgment may be give in respect of the claim for

a maintenance award.

Craig and Harvey, members, concurred.

For Appellant: Adv. W. O. H. Menge i.b. Leslie Simon & Co.


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